O'Rourke Denis: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeO'Rourke Denis: Legal Assistance Amendment Bill — In Committee[Sitting date: 11 June 2013. Volume:691;Page:10973. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First):The original purpose of the Legal Assistance Amendment Bill especially as set out in Part 1 was actually to wrench cost savings out of the legal aid scheme without properly considering the effect on low-income New Zealanders’ ability to have effective legal representation. The result would have been many more self-representation cases more appeals less effective justice and as a result in fact more not less costs.The Minister of Justice did not want to talk about history because I think the history of this particular bill is a little bit embarrassing for the Government. Out of necessity the Government has rethought the amendments and the proposed cuts I am glad to see have mostly been abandoned. The Minister referred us to Supplementary Order Paper 134 and the amendments that that puts alongside the bill. That Supplementary Order Paper did address many of the concerns raised in the proposals including first of all removing the proposal to use Orders in Council to change proceedings for which civil legal aid is available which was far too excessive; removing the tighter financial means test for serious criminal cases which was another very concerning issue; and removing household goods from the calculation for eligibility for legal aid which was a perfectly ridiculous provision. The Minister also indicated changes to be introduced in the regulations including the reduction of the proposed user charge from $100 now to $50 which I will refer to later and also the charging of interest now 6 months after legal aid debt is finalised rather than immediately.These changes are welcome but New Zealand First will still not be able to support the bill as a whole for three good reasons. Firstly New Zealand First will vote against the bill with new section 10(3A) inserted by clause 7(2) in it. The Justice and Electoral Committee recommended allowing the commissioner to refuse civil legal aid if the applicant is in arrears for repayments on previous legal aid grants but subject to an interests-of-justice test. The committee’s proposed clause would further amend the eligibility criteria for civil legal aid to encourage legally aided people to recommence payments and once they began making repayments to become eligible again for legal aid. The majority said this provision would be unlikely to reduce significantly the number of people receiving legal aid but I am not convinced of that at all and I think it is likely to cause injustice even if only in a few cases by making legal aid unavailable to people. I do not particularly trust the commissioner’s discretion being exercised in this way.The majority also said that they had carefully considered the likely effects of this provision on vulnerable people and we are assured that domestic violence mental health refugee and protection cases would be exempt from the provision but I remain concerned that such people would in fact be denied legal aid and again I do not particularly accept the assurance given. The point is this: that eligibility should not rely on the commissioner’s discretion at all in that way—simply to deny or not to deny legal aid because of a past legal aid debt especially where domestic violence protection cases and suchlike are concerned.Secondly the bill’s original purpose for the reintroduction of a user charge remains although it is now $50 rather than $100. Most of us know that in many cases legal aid providers simply paid that charge as their clients could not afford it. That should not be necessary and in my experience on the Legal Aid Review Panel for several years I could see from reading the files that that happened in a large number of cases so what this provision is going to achieve I do not know. At a time when more and more providers are exiting the business of providing legal aid this seems to be self-defeating and bad public policy.The third reason is this: the bill’s provision is that interest be charged on legal aid. The majority of the committee in amending clause 12 said that it should be paid on all unpaid final legal aid debt to ensure that the “amount payable” as defined in the principal Act captures all final debt. The intention was to incentivise prompt repayment but that I think is very unlikely given the financial position of most legally aided people. So again we have an utterly pointless provision that is going to achieve nothing whatsoever.I am pleased of course that there is an amendment to delay the imposition of interest for 6 months from the final determination of what the debt would be but the point is that the principle itself is wrong. People who qualify for legal aid are by definition not easily able to afford it. Charging interest will make their position even worse. The State should get repayment for legal aid because that is the basis of the scheme but the State should make a contribution by bearing the interest—not the person who gets the grant. The State of course actually pays no interest itself; the scheme is provided from taxation. In some cases the imposition of interest will itself create hardship. We are told that there is a discretion so that the interest and in some cases the debt itself can be waived but this is likely to be too often withheld. Again I refer to my experience on the Legal Aid Review Panel where I read many files and cases where people complained that it had been withheld in inappropriate cases and that was true in many cases.This bill was badly conceived at the outset. It is nothing more really than another attack on the lowest-income people in the community. It is penny-pinching at the expense of an effective legal aid system. Many amendments have been needed to the bill—and these are welcome—but there are still some fundamental problems with it especially those three that I have set out. The Government would be best to scrub this bill altogether and for those reasons New Zealand First will certainly vote against it.