Legal Services Amendment Bill — Third Reading 
Legal Services Amendment Bill — Third Reading 
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Legal Services Amendment Bill 
Third Reading 
Hon SIMON POWER (Minister of Justice) 
: 
 I move  
That the Legal Services Amendment Bill be now read a third time 
. The Legal Services Amendment Bill marks an important step in the Government’s treatment of the needs of victims. From the outset I acknowledge that the bill was originally introduced by Annette King towards the final months of the previous Government’s endeavours in what was a particularly difficult public situation. The then Minister moved as quickly as she was able in the circumstances but the matter has now made substantial progress with the assistance of both sides of the House. 
This bill will mean that victims of crime can access legal aid for coronial inquests and Parole Board hearings without facing a financial means test or the possibility of having to make any repayments. This bill improves administrative practice by enabling the Legal Services Agency to decide not to recover legal aid debt at any time during the process. This will alleviate distress for applicants with circumstances where a repayment requirement is inappropriate. The agency will now be able to let victims of crime know as early as possible that they will not be required to make repayments. 
The bill also introduces a regulation-making power in the event that it is necessary to exempt particular classes of persons or proceedings from the financial eligibility tests and repayment conditions. A regulation-making power will enable a swift response to future situations such as those that prompted this bill when they arise. We are all aware of the dreadful circumstances that led to this bill being introduced. This bill reflects the desire of all parties to prevent unnecessarily inflexible legislation from re-victimising victims of crime. In those rare cases where victims of crime need legal representation at coronial inquests and Parole Board hearings they should not have to deal with the stress of the possibility of repayments being required. 
Submissions to the Justice and Electoral Committee raised a number of other possible changes that could be made to support the needs of victims through either the legal aid system or the justice system. I am pleased to say that the Government can address these wider issues relating to the role of victims in the justice system through other pieces of work such as the legal aid review which will continue to attract further attention by way of further reform and the review of the Victims’ Rights Act. This bill provides a focused amendment to a specific problem in the Legal Services Act and provides the flexibility to more efficiently remedy any similar problems in the future. It reinforces the Government’s priority on rebalancing the justice system for victims of crime. I would like to thank all members of the House and all of those who have been involved in this important legislation and the work the select committee undertook. I commend this bill to the House. 
JACINDA ARDERN (Labour) 
: 
 I am pleased to rise to speak on behalf of Labour on this important bill the Legal Services Amendment Bill. I would like firstly to thank the Minister of Justice for acknowledging the work that Labour had already done on this bill prior to the election. In the same vein I acknowledge in particular the Hon Annette King who was the first member of this House to progress this bill in her capacity as the then Minister. I also acknowledge the work of Chester Borrows as the chair of the Justice and Electoral Committee who took the bill through the select committee phase. I acknowledge the officials who serviced the select committee and provided very good advice. I also acknowledge the submitters who choose to come forward and speak to this bill. Many of them or their families had been the victims of a crime. They provided heartfelt submissions not only on the substance of the bill but on the wider issue of victims’ representation in the criminal justice system. A lot of what they said to the committee resonated quite strongly with members on all sides. Of course we were limited as to what we could address within the scope of this bill which is reasonably narrow. 
In this third reading or final stage of the bill I will cover off what this legislation attempts to do. I will highlight the changes that the committee made to the bill and also the wider context of victims’ rights in the criminal justice system. I think we have some way to go in what is a shifting environment in terms of victims’ rights and I will touch on that issue later. 
Firstly it is interesting to reflect on the context of the Legal Services Act which this bill amends. The purpose of the Legal Services Agency is to promote access to justice. There are three quite key principles. The first is to provide a legal aid scheme that assists people of insufficient means to pay for legal services—to none the less have access to them. Legal aid has become a matter of great controversy recently and it is an issue that I am sure the House will debate further in the future. The second key principle is to provide other means of legal assistance. The third is to support community legal services by funding community law centres education and research. The continuing instability of funding for community law centres is a fraught area and this House has already dealt with that this year. I am pleased that there is a good working relationship on both sides of the House via Minister Power to make sure that community law centres continue to be well funded. But they are quite key areas that the Legal Services Agency deals with and they have become quite politically fraught recently. 
This bill is however one that has had support from all sides of the House and I think that is because it responds to an issue of natural justice. Everyone will recall the outrage from the public when it dawned on people that we had a system that would allow quite unjustly victims to be hit with a significant bill for just taking part in legal proceedings that involved the death of a loved one. It is quite right that the amendments made in this bill have been done in such a swift way. 
The purpose of the bill has already been touched on by the Minister but I will highlight it again. The bill ensures that the victims of crime are able to attend stages of justice proceedings such as Parole Board hearings or coronial inquests and are not subject to financial eligibility tests—not necessarily in all cases. It enables the Legal Services Agency to write off legal debt at any time during legal proceedings rather than only when proceedings are concluded. That is something I touched on in the Committee stage. Of course as we are all aware in this House going through the full process of perhaps even appeals etc. could mean that the family of a victim would be waiting a considerable amount of time before they were aware of what kind of legal aid debt might be pursued by the Legal Services Agency. If it is clear from the outset that that is not something the Legal Services Agency is likely to do it is best that that is known up front. Of course as a preventive measure—and I think this is a smart move by the House—a new regulation-making power is given to the Minister to enable extra classes of people to be added in terms of the financial eligibility test and repayment conditions at any time. That means that we will not go through a full parliamentary process to add any extra categories of people; it will be done through a regulations review process. I think that is fitting. 
In my speech in the Committee stage I touched on the amendments that the select committee had made and I think they were useful amendments. They might be considered to be somewhat technical but they clarified that our intention in this House was to allow victims to have this measure apply to them through all stages of a criminal justice process where they had the right to be a part of proceedings. That includes Parole Board hearings and of course there was the discussion around coronial inquests as well. 
I come back to the issue that I very briefly touched on at the beginning of my speech which is the changing context in which we have been debating this measure over the past years—right back to from my recollection as early as 2002. The environment in which we now debate victims’ rights in New Zealand has changed. It was in 2003 I believe that I had the privilege of working for the Hon Phil Goff when he was Minister of Justice and I recall that at that time the Sensible Sentencing Trust was just beginning to emerge as an advocacy body in New Zealand. Since that body has begun to grow it has highlighted for me an issue that I believe all of us in this House should be concerned about. All of us should be champions on behalf of victims. We should also be champions on behalf of a fair and equitable justice system. I fear that in this country at present there is exploitation going on of victims. I do think it is the role of parliamentarians to ensure that if there are concerns—and there still are of course—in our criminal justice system about the way that victims are treated as they come through that system then those concerns should be addressed. But I think that victims at present are being used as part of a lobby for something quite different from that and that it will be to the detriment of this place and of our justice system. We must keep that in mind as we continue to debate additional provisions to enhance the role of victims in our criminal justice system. 
I highlight again that members on both sides of this House hold these issues very dear to our hearts. I think it is unfair that sometimes we hear consideration of these issues as though there is almost a hierarchy of parties with some regarded as being more adequate than others to deal with such issues. I think that is grossly unfair. Although this bill may have been a response to a very specific case we have seen many pieces of legislation during the 9 years of the previous Labour Government that were proactive rather than reactive. I have named some of them before: the Sentencing Act 2002 which introduced the presumption in favour of reparation and resulted in that sentence being used much more frequently and which was something we heard about when we discussed the Sentencing (Offender Levy) Amendment Bill the Victims’ Rights Act 2002 and the Prisoners’ and Victims’ Claims Act 2005. They were not just pieces of legislation; they were policies that were intended to give a greater footing for victims and a greater awareness of the place of victims in our criminal justice system. We should be proud of those policies. 
But I highlight again that there is always a balance to be struck and I fear that at present a lobby is exploiting victims in this country rather than making sure that we have policies in place to genuinely assist those who find themselves in the horrid and unfortunate situation of being a victim in New Zealand. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 This is an extraordinarily apt time to be considering the affect of the legislation that governs our legal services. The Government is of course at this stage involved in a consultation process to improve Government agencies’ responses to victims of crime. The point of that process is to find solutions about how to enhance the rights and role of victims in criminal justice processes. This consultation process itself comes hot on the heels of the release of the legal aid review. The report  
Transforming the Legal Aid System 
 states as one of its basic premises that an efficient and effective court system is central to effective access to justice and within that having a more satisfactory process for victims and witnesses is critical. But there is a statement in that report that is particularly relevant to this bill today. In the section on customer services the report notes that the court system tends to focus on the perpetrators of crime and only to a lesser extent on victims. The families of perpetrators of crime however are generally ignored. This is part of the tragic context of a justice system that insists on defining and separating out people as victims as perpetrators as children but rarely as members of a family. The shame of that approach is that the potential for families to live better lives and to wrap loving arms around an offender so as to avoid patterns of offending into the future is effectively neglected. 
The Legal Services Amendment Bill introduces a new definition of victim. A victim now also includes a parent or a legal guardian of a child or young person or a member of the immediate family of a person who has died or is rendered incapable by an offence. This is very significant in that it is moving towards a justice system that reflects and responds to the community rather than isolates out individual offenders. All of us will know someone who has had a brush with the law. Indeed in the life of this Parliament there have been members who have had various encounters with the police the courts or the corrections system. And so all of us also have the potential to empathise with the families and loved ones of offenders. We understand the traumatic impact of incarceration upon a family; we know the toll taken. The Maori Party knows also the heavy burden borne by far too many of our people. Maori have a higher risk of victimisation across all offence types and this is especially so for Maori women. Maori are also far more likely to be victimised multiple times. The risk of victimisation for Maori is particularly high for serious offences such as sexual violence and violence by partners. One of the most staggering statistics to my mind is that 18 percent of Maori women who had a partner were victimised at least once compared to 5 percent of all non-Maori. These results are too disturbing to table in this House without doing all that we can to address them. 
Faced then with this situation we are now looking at legislation that is to respond to the situation of victims facing additional stress when fronting up to the justice sector. The bill will ensure that victims of crime attending a Parole Board hearing or coronial inquest will not be subject to financial eligibility testing. It stipulates also that any grants made will not have repayment conditions attached. Another factor of this bill is that the Legal Services Agency will write off legal aid debt where the individual circumstances of persons who have received legal aid make it inequitable to seek recovery. Again I think about the disproportionate numbers of Maori who are seeking legal aid and who are struggling to make their way through seemingly insurmountable barriers. Maori and Pasifika persons feature strongly amongst those most likely to experience problems in accessing legal assistance. In Dame Margaret Bazley’s opinion if the legal system fails Maori it fails altogether. One of the key recommendations in her report is that the legal system needs to focus on the legal needs of Maori and Pasifika peoples and the barriers they face in accessing legal aid with a view to enhancing their access over time. I will add to that: let us in this House make sure that it is in quick time not in time that is dragging on for decades to come. I refer again to the report I spoke about yesterday written by my father and Dr Oliver Sutherland in 1973 which concluded that there were two standards of justice in the courts of New Zealand. It was their analysis that Maori offenders were at a disadvantage in the courts and in the main did not receive just and fair treatment. I quote from the report: “the administrators of justice in New Zealand will have to recognise that in this regard they themselves rather than the Maori offenders are the problem”. 
Thirty-six years later then what are we doing to properly address the difficulties that many Maori applicants for legal aid still face? In the  
Report on the 2006 National Survey of Unmet Legal Needs and Access to Services  
the results for Maori revealed that the perceived costs of lawyers’ fees prevented a significant number of Maori from seeking help—more so than New Zealanders on average. Over a third of Maori with problems felt that perceived costs had stopped them from approaching a lawyer to help them with their problem or to see whether they could get legal aid. The problem area where cost was the greatest barrier to accessing such services from a lawyer was in whanau or relationship breakdowns. For consumer-related problems a category where Maori were least likely to seek help cost was also a relatively significant issue. 
This bill in itself will not magically address longstanding issues dating back over decades about the inequitable treatment of Maori within the justice system. It is also a bill that is being debated in the context of considerable upheaval within the sector and particularly in relation to the Legal Services Agency. The Maori Party will support this bill as it is an important step in seeking a direction for the justice system. Of course we will always support any attempt to ensure that people gain adequate access to justice. However there are many other issues that we want to see addressed including the aspiration of a justice system strategy based on kaupapa Maori and within the context of Maori cultural values. These are issues that my colleague the Hon Dr Pita Sharples is pursuing in the Drivers of Crime work programme and in the context of the future work ahead the Maori Party is delighted to support this bill as a move in the right direction. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I will take just a short call on the Legal Services Amendment Bill and I will make just three points. 
The first is a point I made during the Committee stage which is that I hope the Government will take an early opportunity to look at the question of representation in coroners’ hearings. Such a hearing is not like a court in the normal run of events and not everyone is eligible to hire a lawyer to appear for them in a coroner’s hearing. As one of the lawyers who has appeared in that situation quite frequently said to me once it is a court of understanding. That is its objective: to get to a point of understanding of what went wrong and to gain learnings from it so that the risks are reduced in terms of those events occurring again. I was very much involved in the loss of life that occurred at Christchurch Hospital in 1996 and I attended coroners’ hearings and observed that everyone—doctors nurses hospitals—in the room was represented by lawyers except the families. I have felt for a long time that this is a gap in our system and I say to the Government that we would certainly be very happy to work with it on extending the eligibility for representation in coroners’ hearings as part of the legal aid review; I think it would fit very well with it. 
That moves me on to the second point which is that victims are not just those who are victims of serious crime. I have just come to the House from the Commerce Committee’s hearings into finance company failures. There are people out there who have lost a lot of money. They have not been the victims of crime; they have not been mugged in the street. But they certainly have been mugged in terms of the amount of money they have lost through the investments they made. So it is all a matter of degree and perspective. A lot of people would in fact like to see their access to justice facilitated by greater access to financial support to take on these cases—in some cases those people are directors trustees or auditors—and to enable a more class action approach so that groupings can get together and drive the legal work that needs to be done in order to hold to account the people who ought to be held to account. 
I acknowledge the Minister of Justice—this is my first chance to do so since question time—for agreeing to meet with the Manukau lawyers. I met with them yesterday and what I got out of that meeting—which I think the Minister will too—is that most of Dame Margaret’s recommendations are really worthy and it is worthwhile getting on with them. I understand his desire to get on with them quickly and I support him in that. But some recommendations are silly and will not work and he needs to meet with the lawyers and understand why. One of the recommendations sounds really really good—mind you I laughed when it was put to me—and that is the recommendation about meeting with the duty solicitor 2 days before the hearing. It is just not possible. The summary of facts is not available from the police until the day so there are issues around processes. We think that some focus on the processes particularly in the Manukau District Court might actually solve a lot of the problems that are happening there. I respectfully disagree with the Minister about the need to right the wrong of the assumptions that have been created about 80 percent of the people who work there. But I will leave the Minister to hear what they have to say and if he is able to address that issue I think it will help everyone move on and back the changes that have to be made. 
The final point I make is to back Jacinda Ardern’s comments. I believe there are groups out there who are using the victims of serious violent crime to prevent a broader debate about the drivers of crime. I make it absolutely clear that identifying drivers of crime is not a process of making excuses for criminal behaviour. It is not about excuses; it is about opportunities to intervene so that we can reduce crime. I think the Government is absolutely on the right track with this and we want to back it on that as well. After all that backing of the Government I think I will call my speech to a close. 
Bill read a third time.