Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
Wilkinson Kate: Legal Services Amendment Bill (No 2) — In Committee 
[Volume:630;Page:2036] 
KATE WILKINSON (National) 
: 
 We know that the main aim of the Legal Services Amendment Bill (No 2) which amends the Legal Services Act is to update the financial eligibility criteria for the granting of legal aid and to improve the repayment of legal aid and the administration of the legal aid scheme. The bill would enable about 1.2 million New Zealanders to be eligible for legal aid—an increase from some 765000. 
But the bill is not about lawyers; it is about access to justice. In the words of the New Zealand Law Society the right to legal representation is worthless if effective representation is not available. We are nearly doubling the number of legal aid recipients yet anecdotal evidence shows a decreasing number of lawyers—an exodus of lawyers who are willing and available to do legal aid work. Both sides of the coin must be addressed: that of the user of legal services—the client—and that of the provider of legal service—the lawyer. The bill does not do so. It seems to take as a given that there will be enough able qualified and willing lawyers to cope with the increased case load that would result from increasing the legal aid eligibility. But firms are declining to take on legal aid work. Fewer and fewer lawyers are willing to take on the work. That is not justice and neither is it access to justice. Because of a shortage in the supply of qualified and experienced lawyers a miscarriage of that justice is more than likely to occur. As an example part of the legal aid regime requires a solicitor in order to qualify for a particular legal aid rate and level to have spent 3 days in a court under the supervision of another lawyer. That sounds great in terms of quality control and standards but the fact of the matter is that for those 3 days neither of the lawyers can charge their rates at all. They simply do not get paid. It is little wonder therefore that lawyers are turning their backs on legal aid work and this bill does nothing to attract them back. 
We have a prima facie case—and we all know about prima facie cases—that through the bill access to justice is being threatened not just for the criminals and the gang members but for any New Zealander who is financially eligible including victims of domestic violence wrongly accused victims seeking to prove their innocence and those who may have simply made a mistake. Those people all need legal representation and they all need justice. Lawyers generally agree that they themselves feel an obligation to provide legal aid services as an integral part of the issue of access to justice. 
But it is not access to justice when defendants who are defending their innocence have fewer resources and when their legal counsel has less time to prepare the case—fewer resources at less cost—than their prosecuting counterparts. It is not access to justice when victims of domestic violence who are in desperate need of prompt competent advice have to shop around for a lawyer who is willing to do legal aid work. It is not access to justice when clients do not have the opportunity to engage sufficiently qualified experienced and able counsel. Counsel of choice is an important hallmark of our legal aid scheme as my learned colleague has already alluded to and by not addressing the issue of legal aid providers the bill limits the choice of legal representation. 
It is not access to justice when one first has to jump through the uncertainty of the eligibility rules. The Legal Services Agency has such discretion that it leads to such uncertainty. Is this the right group to determine for example the interests of justice? Is the Legal Services Agency the right group to determine for example the likelihood of sentence of imprisonment? Is the Legal Services Agency the right agency to determine whether the proceedings involve a substantial question of law? Is the Legal Services Agency the right group to determine the prospect of success in for instance family and domestic cases? Such uncertainty is not access to justice.