Clendon David: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeClendon David: Legal Assistance Amendment Bill — In Committee[Sitting date: 11 June 2013. Volume:691;Page:10976. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green):The report back on the Legal Assistance Amendment Bill from the Justice and Electoral Committee—that is the majority report from the Government members predominantly—makes interesting reading. I have never read a majority report in a select committee report where the Government members on a committee have been so willing—indeed eager—to overturn some of the original provisions of the bill as it was first drafted. To their considerable credit they have recognised that many of the provisions in that original bill were utterly untenable. They were unacceptable to New Zealanders. The severity of what was proposed in that original drafting was a disgrace and as I say it is a credit to the Government members on the select committee that they along with the Opposition members saw that those provisions were untenable. They were unacceptable to New Zealanders indeed.Unfortunately what continues in this bill which obviously the Greens are opposing is the unacceptably low income thresholds for eligibility for assistance. The propositionthat somebody earning the minimum wage should not be eligible for legal assistance reflects a complete lack of awareness a disconnect between what are the lifestyles shall we say or the lived experience of people making such propositions and those who are actually caught up in the legal process. We know that the minimum wage is significantly less than a living wage in New Zealand. It is not sufficient for somebody to have a decent standard of life a decent quality of living. It suggests however in this bill that that is sufficient for people to afford an appropriate and decent defence if they find themselves in a situation where they need legal representation.We heard from the Minister of Justice earlier a proposition that this bill will somehow deter those who might be in possession of significant wealth who might be using family trusts or some other mechanisms to disguise that wealth and thereby become eligible. I would be delighted if the Minister could point us to provisions in this bill that will remedy that situation of a person—I think she referred to a failed finance company director—still sitting on considerable personal wealth but managing to conceal that wealth. I would be delighted to have it shown to me where in this bill that situation would be remedied—where that person would be obliged to pay for their own defence rather than be able to appeal for legal aid.I think the low point of the original drafting was the proposition that in order to be eligible for legal aid a person’s so-called capital goods would be valued—people’s clothing their household goods. For me my personal bête noire is the notion that tools of trade should have to come into that calculation. The proposition that a person should be obliged to sell their tools of trade the means by which they earn their living in order to become eligible for legal aid is simply a nonsense. It is abhorrent and it is to the credit of the committee that that at least has been thrown out of this legislation.The point is made in the Green-Labour minority report that in pursuit of the cost savings of this legal aid scheme there is scant regard for the catastrophic effect on low-income New Zealanders and their ability to access the justice system and the extent to which these propositions can potentially be seen to contravene the New Zealand Bill of Rights Act has already been observed and noted.It is not only low-income people who need to have concerns about this legislation. Middle New Zealand—people who are earning what might be deemed a living income but who for whatever reasons are not well-to-do people. There are a significant number of middle-income New Zealanders who would struggle to afford decent representation in a court of law and this legislation does nothing to recognise their situation. It does nothing to alleviate or in any way deal with that situation that they could find themselves in.The proposition that a person can be denied legal assistance if they have not yet repaid obligations or debts from some former use of legal aid in itself seems not unreasonable except that it overlooks a whole bunch of situations an individual might find themselves in where they are simply not able to afford to repay that obligation at the point at which it is made. I think some of the conditions that appear in Supplementary Order Paper 134 are interesting particularly for me the proposition that a deduction from a person’s income from their salary wages or whatever it might be can occur.The proposition is that a person is no longer entitled to legal aid at the point at which a reminder notice is sent to that person. In new section 41B(1) as proposed in Supplementary Order Paper 134 “This section”—in terms of the deduction of overdue amounts—“applies whenever the Commissioner has reminded an aided person in writing of the person’s obligation to pay an overdue amount …”. One thing we know about low-income people is that they tend to be very transient. They tend not to be in one place for very long. It is entirely reasonable to assume that people may not be awareof their obligation. Somebody who does not see a reminder notice may nevertheless suddenly discover that their income is having significant deductions taken from it.We are told further on in the Supplementary Order Paper—new section 41H “Protected earnings” so-called—that 60 percent of a person’s net income may be protected. Turn that round. A person could lose 40 percent of their net income. It could be deducted in order to repay this so-called debt from some prior use of legal assistance. For a person on a low income or even a moderate income that could be disastrous in terms of taking away from them the ability to pay basic living costs—their rent their power bill their grocery bill. Deducting 40 percent of income from a low-income person or even a moderate-income person could just lead to the complete financial collapse of a household. Whose interests are then served when that person is no longer able to provide the basic necessities for themselves and for the household they may well be supporting? That is an extraordinarily high provision a very high bar to enable the commissioner to take 40 percent of a person’s net income.I will not dwell on it here but we have had some significant submissions to this bill of course in the process of the select committee hearings. The Criminal Bar Association pointed to the fact that in its view the bill as drafted systematically deconstructs safety nets available to those vulnerable people charged with criminal offences. It refers to the bill’s improper balance between access to justice and the cost of a legal aid system which will be at the cost of justice in a large number of cases.These are not trivial objections from a group of people who are right at the sharp edge. On a day-to-day basis their members see the reality as Ms Dalziel described of places like the Manukau court the west Auckland courts and so on where it is not a matter of wealthy people concealing their wealth. It is a situation of people completely adrift in a system of which they have very little understanding who need representation and who will not be able to afford it.We know in respect of self-litigants—and again this came through in a number of the submissions—that the denial of legal aid will lead to more self-litigation so the penny saved will result in a pound more cost further down the track. Self-litigation slows the processes of courts. Judges become by default purveyors of legal advice. Court staff will be obliged or asked consistently and routinely to provide legal advice which is actually not what they are there to do. Self-litigation is recommended against at various points on the Ministry of Justice’s own website. The failures the difficulties and the dangers to the accused person the costs to the courts and the costs in terms of time to the judge and the whole judicial process are clearly out of step and have not been taken account of in this. Inevitably we will see more people try to represent themselves who do not have the skills the information and the wherewithal to do so. So any money saved by this quite Draconian denial of access to legal aid will very quickly be hoovered up by other costs that are imposed further down the track.Unfortunately that is a phenomenon we have seen all too much of recently. In the Government’s absolute determination to get this elusive Budget surplus it is looking for line-by-line cost reductions without looking at the bigger picture. When the big picture is the justice sector that is untenable. It is not just a matter of financial impropriety. This is talking about absolute basic rights basic access to the justice system. We ought not to be denying our citizens that.