Wilkinson Kate: Legal Services Amendment Bill (No 2) — Second Reading 
Wilkinson Kate: Legal Services Amendment Bill (No 2) — Second Reading 
[Volume:629;Page:1750] 
KATE WILKINSON (National) 
: 
 This bill is not about lawyers. This bill is about access to justice. It increases—in fact it nearly doubles—those eligible for legal aid to some 1.2 million New Zealanders. Yes it increases the financial threshold for legal aid eligibility and yes it has some good intentions but accessibility to justice is two-sided. It also requires that there are sufficient providers of those legal services and it is very debatable whether there are sufficient lawyers who are prepared and who are adequately experienced to do that work. This is not just about the remuneration for lawyers undertaking legal aid work. This is about there being enough lawyers willing to do this legal aid work for nearly twice the number of legal aid recipients now. This is not a new problem but it is a problem that has not been addressed in this bill and it is a problem that certainly needs to be addressed. 
We have heard it said that legal aid rates for lawyers decreased in 1996 and have not changed since. Those rates are 10 years out of date. This means that the quality of service to clients may be compromised. Clients’ access to justice may be compromised. This bill which advocates access to justice simply does not address one of the main barriers to such access. We have heard that in the criminal jurisdiction legal aid defence counsel are paid less than Crown prosecutors. This results in inequality—a threat to the fundamental right to a fair trial. In a criminal trial the legal aid lawyers who as officers of the court represent their clients to the very best of their ability are at a significant disadvantage—and their clients are therefore at a significant disadvantage—to their prosecuting counterparts. Their resources are fewer. They do not have the resources of the police in support. In some cases more work is actually required of the defence counsel but they cannot do it. Prosecutors are allocated more paid hours for preparation. The amount of time for preparation of defence for which legal aid lawyers are paid is often unrealistically limited and they often have to accept an unreasonably high workload in order to cover expenses. 
So what does this mean? It means that fewer lawyers are taking on legal aid work. Legal aid work is not compulsory. It limits the choice of clients to a lawyer. It increases the likelihood of less experienced counsel undertaking legal aid work with greater risk of errors and less skilled judgment. It increases the likelihood of consequent appeals at even more cost. Because legal work has become so unremunerative many experienced practitioners are withdrawing from it. 
I will give members two anecdotal examples. Firstly in November 2005 a local law society sent out this notice to all firms: “The Family Law Committee has been advised that a number of law firms are no longer undertaking family law legal aid work due to their increased workload. We understand some firms are turning away a significant number of clients because of this. In many instances the firm cannot refer the member of the public to another law firm as they have no knowledge as to what firms do undertake legal aid work. The society would like to ascertain which firms in the region are undertaking family law legal aid work.” The response to that notice was that 30 firms out of a total of 306 firms—that is less than 10 percent—said they still persisted with legal aid work. That is a real issue in relation to access to justice. 
Secondly I would like to quote from a letter dated 7 March 2006 from a law firm: “It is with regret that we advise that this firm will no longer undertake Legal Services work for new matters. We are prepared to continue with our existing aided clients until their matters are completed particularly as we are aware the remaining legal aid providers in [the area] would not be able to act on many of the matters as they will be in a conflict situation. We have reached this decision for the following reasons: (1) the rate of payment is uneconomic; (2) the difficulty in getting extensions to grant for all but the most exceptional circumstances; (3) the cost of managing systems to ensure compliance with your requirements; (4) the unreasonableness of some of those requirements; (5) the lack of funding for aspects of file and case management deemed not acceptable to the Legal Services Agency; (6) the pressure from clients to provide legal services to a standard which legal services will not fund—those expectations are not usually unreasonable—and (7) to some extent there is an expectation from the Family Court for us to provide legal services to a standard not funded by the Legal Services Agency. It is with regret that we come to this decision as we as providers have strived to provide a high standard of service to clients who cannot afford to pay. However we do not consider we should continue to provide these services at our cost or expect our paying clients to cross-subsidise the legally aided client. We are acutely aware that our actions will limit access to justice for a significant number of people in our community particularly women with children. In the final analysis that is not our problem but one which needs political intervention to correct.” 
This issue does need political intervention to address the problem but this bill does not do that. If we are to intervene in any meaningful way to ensure due access to justice then among other things the issue of legal aid rates and parity with Crown prosecuting rates must be addressed. In the submission of the New Zealand Law Society it was noted that in some areas “applicants are having difficulty finding legal aid providers who are willing to accept domestic violence cases. Applicants seeking protection orders are reported as having to ‘shop around’ for a lawyer.” Yet is that not exactly the situation where quick proper access to legal representation is essential? Victims of domestic violence do not have the luxury of shopping around. They have a desperate situation. They have an immediate situation—one that simply must be addressed immediately. It cannot wait for one of the few overly worked underpaid and perhaps under-experienced lawyers to maybe become available to do the work. This is not access to justice this is not equitable and neither is it credible or accessible. 
Neither is it related solely to lawyers; it is about the clients the domestic clients—not just the gang members not just the criminal clients but the domestic clients who are desperately in need of some help through the justice system. This bill does not provide that help or that accessibility to justice. 
I think it is probably fair to say that on the whole lawyers feel an obligation to provide legal aided services as part and parcel of that important issue of access to justice and that if there is a guaranteed supply of legal aid work then a lower rate of remuneration may be expected. But it is not justice if one side is given more public money and resources to fund the prosecution than the defendant is allocated to defend him or herself. This bill is imbalanced. It is flawed. National opposes this bill.