Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2228] 
KATE WILKINSON (National) 
: 
 It gives me great pleasure again to rise to speak to the title and commencement date of the Legal Services Amendment Bill (No 2). I do not think that this bill should be called the Legal Services Amendment Bill (No 2) at all. I think it should be called the “Legal Services (Access to Justice) Amendment Bill” because throughout our debate members on this side of the Chamber have concentrated on access to justice as being the paramount issue. That issue seems to have been ignored completely by those on the other side of the Chamber. 
I have said it before but I will repeat it because I think it is so vital in terms of this bill. It is not access to justice where defendants who are defending their innocence have fewer resources and where their legal counsel has less time to prepare the case than their prosecuting counterparts. It is not access to justice when victims of domestic violence who are in desperate need of prompt competent and able advice have to shop around for a lawyer who is willing and able to do legal aid work. It is not access to justice when clients do not have the opportunity to engage sufficiently qualified experienced and able counsel. Counsel of choice is an important hallmark of our legal aid scheme and by not addressing the issue of legal aid providers the bill limits the choice of legal representation. It is not access to justice when one first has to jump through all the uncertainty of the eligibility rules that are contained in this bill. 
While I talk about uncertainty I would just like to refer to some of the definitions in schedule 1 of the bill which is to replace the current schedule 1 of the Legal Services Act because I do not think those definitions do much to assist in the whole issue of access to justice. Forgive me if I am being a pedantic ex-lawyer but there is a definition of “disposable capital” in clause 3 which states: “… that person’s total assets after deducting the amount of any debts secured against those assets”—which is fine—“and after deducting—(a) if the person has an interest in a home the amount of equity in the property set by regulations made under this Act:”. 
I am not sure what “set by regulations made under this Act” means. This schedule is an addition to the principal Act but surely equity is equity—that is the value of the asset less the debt. How on earth can equity be some figure prescribed by regulations? Where we have equity in this bill it is not set by a valuation it is not set by the Government valuation less the mortgage but it is set by regulations. What can we read into that? Is it that those regulations will set an absolute maximum so that if one has an equity of say $50000 one may be eligible for legal aid but if one has an equity of $60000—as set by regulations—one may not be eligible? It will be arbitrary bearing absolutely no relation whatsoever at all to reality. 
Then the bill talks about an allowance for “the amount of the contingent liabilities of the person that may mature within the next 6 months:”. So for any guarantees that may have been given—which are often upon demand and we all know that “upon demand” under the meaning in the chattels transfer legislation is within 3 months—the amount of that guarantee will be deducted from the value of a person’s assets. Some guarantees albeit unwisely are for unlimited amounts so those guarantees could reduce the assets of an applicant for legal aid down to zero. It is meaningless to have such an uncertain definition of disposable capital in the schedule of the Legal Services Amendment Bill (No 2). 
Perhaps one of the other definitions in the schedule that I also take issue with is the definition in clause 4 of resources of partner or spouse. It states: “Any resources of a person’s spouse or partner”—which is fine—“must be treated as that person’s resources unless—(a) the person is living apart”—and that is OK—“from his or her spouse or partner; or (b) the person and his or her spouse or partner have contrary interests in the matter to which the proceedings relate; or (c) regulations … provide otherwise.” Again what on earth will those regulations provide? 
 The partners and spouses either are living separate and apart or are not. 
That brings me to the basis I believe of relationship property law or matrimonial property law—whatever one wants to call it—which generally provides that partners and spouses can keep certain property separate such as inheritances. As long as that property is kept separate and apart and has not been intermingled in any way then it is regarded as that person’s separate property. But the definition in the Legal Services Amendment Bill (No 2) overrides that basic premise.