Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2222] 
KATE WILKINSON (National) 
: 
 I too rise to speak to Part 2 the transitional provisions provided for in the Legal Services Amendment Bill (No 2). It is easy to dismiss transitional provisions of any bill or statute as technical trivial or even boring and as mere machinery provisions and accordingly to overlook their very importance. But they are important and they are deserving of very close scrutiny indeed. 
Although transitional provisions are frequently required as a consequence of a change in law that change may be the result of the repeal of existing legislation or its replacement with new legislation. It may also be the result of amendments to existing legislation that do not necessarily involve repeal whether in whole or in part. In this bill we have a bit of both. We have some repeal and we have some amendments. Accordingly we must look carefully at any existing situations rights and interests of the parties to determine the effect on them of this proposed legislation. It is all too easy to focus on how the legislation will work in the future rather than on the transition to the new arrangements. The problems caused by inadequate transitional provisions or in fact no transitional provisions can be considerable and far-reaching and it is for this reason that we really do need to give these two very important clauses some close scrutiny. I liken it to a “what if” situation. Members have to ask themselves what if a certain circumstance arises or occurs—is it covered by these transitional provisions? 
For example under this legislation we must consider what happens to a person who was financially ineligible for legal aid and is part-way through a case. Under these expanded criteria which now allow an extra 450000 New Zealanders to become eligible for legal aid a person may become eligible even if a case is midway through. That is tough because under the transitional provisions the bill does not affect applications for legal aid or for grants of legal aid made before the commencement date. So we may in fact have a situation where the applicant in a court case is actually disadvantaged because of the inadequacy or otherwise of these transitional provisions. 
If the applicant was ineligible for legal aid at the first hearing but took the matter to subsequent appeal would he or she be eligible for legal aid for that subsequent appeal? Those are the questions that as members of the House we must be asking in order to ensure that we are indeed making good law—even though this part is what some would call a technical boring machinery provision of the bill. 
What happens if the person is embarking on mediation proceedings for which legal aid was not previously available? Under the transitional provisions of this bill legal aid could possibly be available. The important date is however again that on which the application for legal aid is made not the date of the proceedings. What happens if a person who was previously eligible for legal aid becomes ineligible for some reason following the passing of this bill? Again we must look at the date on which the application for legal aid was made. 
Can a person midway through a case who now becomes eligible for legal aid having previously been ineligible for legal aid apply for legal aid? Many of the additional 450000 New Zealanders who are now eligible for legal aid are midway through a case. If they can apply for legal aid how do they apply for it? What is the procedure for those midway litigants? Will the case be adjourned? We do not want a miscarriage of justice because that would lead to more appeals and more legal aid. Will the case be adjourned to enable the legal aid documentation to be put in place? If the case is adjourned to enable the documentation to be put in place then the judge has to set the case down for another hearing date. 
In the meantime the applicant fills in the legal aid application form. We have heard in the debate on previous parts of the bill how onerous some of the bureaucratic requirements of the legal aid regime really are. So the poor old applicants may have their cases adjourned halfway through. They get another hearing date and fill in all the forms. This may take time because they will have to substantiate the details on those forms. They may have to substantiate their income—they may have to get that information from their accountant—they may have to substantiate their capital position they may have to get a valuation of their property and they may even have to substantiate whether they are actually single married or separated to determine exactly what their assets are and what their income is. All this takes a lot of time and incurs a lot of cost. 
In this scenario the Legal Services Agency becomes inundated with all these applications from New Zealanders who are suddenly eligible for legal aid. The agency cannot cope with them. We have even more bureaucracy. The new hearing date arrives—I ask members to bear with me through this scenario because I do not think it is as far-fetched as some might think—and the poor old person who is getting legal aid turns up with his or her counsel but because of the inundation of the Legal Services Agency with all those extra applications that person’s legal aid eligibility has not yet been determined. The lawyer then has to apply for a further adjournment and the judge has to set a further rehearing date. All that that does is clog up the already clogged up system. It wastes the time of counsel on both sides it wastes the time of the judges and it wastes the time of the clerks. It is another level of what could be termed unnecessary bureaucracy. 
Of course there is another scenario that I will go through as well—this time perhaps not in such detail because I am aware that my call is about to come to an end. What happens if people currently midway through a case have a lawyer who is not an approved legal aid provider? That lawyer may well have to apply to be a legal aid provider. Nothing in these transitional provisions makes adequate provision for a scenario in which a client suddenly becomes eligible for legal aid halfway through a case but his or her lawyer is not a legal aid provider. Again we may have further adjournments and a further waste of time. At the end of the day the paramount issue of this bill is access to justice. One cannot deny justice to a person who is halfway through a case. This House is changing the rules and that person will now be legally eligible for legal aid. That person’s lawyer who thought he or she was not doing a legal aid job suddenly finds that he or she has to be a qualified certified legal aid provider. There is absolutely no mention of what happens if a lawyer who is not a legal aid provider is part-way through a case. 
This highlights the importance of transitional provisions which can be overlooked. They are not to be taken lightly; they are machinery provisions but they are very very important. When members look back at some of the speeches that have been given on this bill beforehand they will see that we on the Opposition side of the Chamber have highlighted the difficulties with the amount of bureaucracy and the fact that because of the bureaucracy there are fewer legal aid providers. I would like to mention again a local firm that wrote to the Legal Services Agency about this bureaucracy: “It is with regret that we advise that this firm will no longer undertake legal services for new matters—”.