Parker David: Legal Services Bill — In Committee Speaker Recalled In Committee 
Parker David: Legal Services Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17003] 
Hon DAVID PARKER (Labour) 
: 
 Just following on from the issue that Simon Bridges raised I agree with Mr Bridges in respect of it. Indeed I wonder whether the preliminary provision in clause 3 which presently states: “The purpose of this Act is to promote access to justice by establishing a system that—(a) provides legal services to people of insufficient means;” might better read “provides appropriate legal services to people of insufficient means:”. I agree with Simon Bridges that we need to take care that we do not cross a line so that legal aid funding is provided to people on low incomes for things that they would not fund for themselves were they on high incomes. It is one of the tensions we have in legal aid. If legal aid is available at low or no cost to low-income people who have no realistic prospect of paying back what is in theory meant to be a loan it is effectively a grant to them for ever and there is little financial incentive on them to appropriately modify or control their own expenditure on legal fees because in the end they do not pay the bill. I think that there are a couple of areas yet to be properly controlled through the legal aid system and I would like to hear the view of the Minister in the chair the Hon Simon Power as to how this purpose together with the relevant parts of the bill achieves proper control of criminal appeals and multi-defendant drug trials. 
I will deal with the first one in respect of criminal appeals. There used to be a system in New Zealand where criminal appeals particularly to the Court of Appeal were controlled by the judges themselves. A Privy Council decision said that that was inappropriate—that the judge ought not to be the gatekeeper as well as the judge on the substantive merits of the appeal. I can understand why the Privy Council found that and it seemed a wise decision. But as a consequence the only effective stop on everyone who wanted to exercise a right of appeal in a criminal matter being paid for by the State was thrown out and we have not had a replacement gatekeeper. I absolutely believe that we should be enabling people to have fair access to legal representation in respect of their first appearance. However I am not convinced that everyone who wants to appeal if they can do so more frequently as a legally aided appellant in a criminal appeal should be funded by the State effectively at the cost of other taxpayers. There needs to be some mechanism in the system to stop what is effectively a proliferation of criminal appeals that would not happen if these people were pecunious—that is if they had the money and were themselves paying—because they would be more likely not to pursue an unmeritorious appeal. That is one issue. I think we should have the word “appropriate” in that clause because this is money that we are short of and I am not sure that this bill quite gets that right. 
The second point is in respect of multi-defendant trials. Multi-defendant trials can arise where there are complex drug crimes. There are a number of defendants and often their interests are just about identical but we can bet that if they are on legal aid they will all have a separate lawyer. If they were not on legal aid and were paying their own defence they seem remarkably to be able to agree that they should cooperate and share the expense of a lawyer. Instead of having five lawyers all being paid by the State they somehow manage to cooperate and agree between them that it would be much more sensible that they have only one. That aspect of criminal legal aid overexpenditure needs to be controlled as well. Not only does it cause a waste of costs to the State in respect of the defence legal aid costs it actually elongates the trial. Five lawyers would be jumping up to cross-examine the same witness all showing how good they are at their job. It elongates the period of time for the trial so that the trials run a lot longer and they are a lot more complex for the judge to manage. It takes a lot more time when it comes to the prosecution it takes a lot more time when it comes to the police and the other witnesses that have to appear and the whole thing becomes more complex and more expensive. 
The quality of justice cannot be divorced from its accessibility but that does not run for just the accused or the defendant. It also runs for the overall cost of the process as to whether Governments can afford to run decent judicial systems and we see this even more so in respect of civil proceedings. In respect of civil proceedings I suggest that it is important that the Attorney-General who has conduct of civil proceedings rules exerts controls because in a constitutional sense they are the Attorney-General’s rules.