Dalziel Lianne: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeDalziel Lianne: Legal Assistance Amendment Bill — In Committee[Sitting date: 02 July 2013. Volume:691;Page:11593. Text is incorporated into the Bound Volume.]Hon LIANNE DALZIEL (Labour—Christchurch East):I would like to follow on from that excellent contribution from my colleague Kris Faafoi where he basically ended with reference to the original name of the bill the Legal Assistance (Sustainability) Amendment Bill. Of course the word “Sustainability” has been removed. I too agree with him that “Sustainability” should have been removed from the bill and probably should not have been in there in the first place although it was there for a particular reason and that was that it was a cue for explaining what the Government was actually trying to do which was to cut costs—cut the costs of legal aid.Of course when one cuts costs in one area there is something else that always happens somewhere else. And is it not unusual that normally speaking in a regulatory impact statement you cannot find where that blowout is going to occur because it looks only at the short-term impact and the impact on the particular budget and it is not looking in the long term. But actually in this regulatory impact statement they have done an excellent job and I want to congratulate those who put it together unfortunately without the benefit of wide public input because of time pressures and the budget-sensitive nature of the issues under consideration. We were told that the select committee process would of course substitute for the public input. I actually do not think we do justice to the need for public input on matters as important as this by saying that the select committee process will do. You can put in a written submission and then turn up and have your time in front of the committee for 5 or 10 minutes as an individual. I think that that is a bit of a problem.I will quote from an individual’s submission because I want people to know that this is not about what lawyers think or about what people who work within the system necessarily think. It is the very direct and real impact that makes this bill not sustainable. That is why the word “Sustainability” has appropriately been withdrawn. But let me just read out the number of risks that were discerned. One was that a change of purchase approach is required but is likely to be resisted by some parts of the legal profession. Well that has happened. There are people who have pulled out of legal aid all around the country. In fact we heard evidence from one person down in Christchurch who had actually left her firm and set up her own practice so that she could continue to offer a degree of legal aid work to her client base which was largely made up of refugees and migrants. I say good on her. She was extraordinary.The regulatory impact statement states: “Reductions in the price paid to lawyers could create gaps in provision particularly in the family and civil jurisdictions …” which is exactly what has happened particularly in smaller centres; “The introduction of income and asset thresholds for the criminal means test will be in tension withsection 24(f) of the New Zealand Bill of Rights Act” and that was something raised by this individual submission that I am going to refer to; and “It could also delay some court cases if judges defer proceedings because of inadequate representation. Restrictions to eligibility will disadvantage people on low incomes who have few options to find legal services elsewhere. Generally this includes young Māori men in the criminal jurisdiction and women and children in the family jurisdiction.” I went through the list of the sequence of events that actually discriminates—not deliberately but in fact discriminates—against Māori and that is why we have a higher proportion of Māori in our prisons. It starts right from when they get stopped in the street all the way through the process. They are much more likely to end up in jail for longer.The final risk which was the interesting one because it is raised in another submission that I want to refer to is that “Withdrawing legal aid for low income groups is likely to lead to additional costs elsewhere in the justice system. In particular it may increase the number of self-represented litigants with flow on costs dues to delays additional assistance required from court staff and the judiciary and higher numbers of appeals of decisions.”This refers me to Anita Cochrane from Auckland who has made this submission saying that she believes it to be “a travesty and makes a mockery of the New Zealand Bill of Rights Act …”. I congratulate her on being so forthright in her presentation to us. What she was saying was that section 24(f) of the Act makes it absolutely clear that people “shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance;”. She talks about not having the right to get a fair hearing if you cannot afford to pay for a lawyer and I think that that is a statement that is well made.What she went on to do was to speak of her own experience and she did not talk about the particular matter that took her to court but it was a case that took her “1 year and 5 court attendances 4 of which were all remanded by the prosecution due to some reason”—for example the documents were not there it lost some evidence or there was another important case going on. She says: “It was only on the 5th attendance and the 5th attempt by the prosecution to remand the case yet again that I demanded that the case go to court or they withdraw their charges.” Each time she had to pay her lawyer $2000 to appear. She makes the point that she earned $51000 owns a car worth $2000 could not afford to own her own house and had no capital or other assets. “The opposition”—meaning the prosecution—“then tried to bully me into pleading guilty. I had to weigh up the cost of trying to find more money as I had paid out so much and still had not even seen a judge or the possibility of the end of the case. So what did I do? I was forced to agree to a $500 fine and pay court costs. It was cheaper than trying to find more money for the Lawyer yet the prosecution had lost the evidence!”.This was in 2010 under the current arrangements. She asks: “Has anyone looked at how much a person earning $22000 a year actually is in real terms? After tax a person earning $22000 takes home $330 a week. The cheapest rent for 1 bedroom in Auckland is approx $200 a week. That [leaves] $130 for food transport medical and possibly child care. They could possibly have 1 dependent. What portion of New Zealand earners are in that area? Those people working in the fast food business waitress staff and the likes. Students working part time shelf packers … The low income earners.” Then she went on to talk about her daughter falling into that bracket but owning a car—again that being her only asset. “The changes to the current bill”—she says—“will require 90% of the population to pay for their own defence. From the person packing shelves right up to the company directors and owners. The 10% of the population who can get legal aid are the Zero to $21000 a year earners. These are people that are unemployed or on sick benefits maternity benefits or other benefits or those that fall into this criteria … who take home $315 a week after tax.Where is the fairness in saying only 10% of the people are entitled to assisted legal representation?”. She made the point that actually in the Crimes Act—she quotes the Crimes Act—“ ‘The fact that an offender is ignorant of the law is not an excuse for any offence committed by him’ The reality is that many people are ignorant of the law.” She says: “There are so many laws. The people trust Parliament with the making of the laws to protect them [not] to disadvantage them so they can represent themselves in court or plead guilty due to ignorance of the law.” That is the problem: she pleaded guilty due to ignorance of the law. She was not guilty of the offence; she would have got off if she had been able to defend herself but the system failed her. The system let her down.That is what my major concern is and that is exactly what the concern was when it was expressed in the regulatory impact statement. Be careful what you wish for. Be careful what you do. The regulatory impact statement states: “Withdrawing legal aid for low income groups is likely to lead to additional costs elsewhere in the justice system. In particular it may increase the number of self-represented litigants with flow on costs due to delays additional assistance required from court staff and the judiciary and higher numbers of appeals of decisions.” And the one they missed out? Pleading guilty to a crime you did not commit. And that is going to happen time and time and time again because it is much cheaper to plead guilty and end up with a conviction—$500 and court costs—despite the fact that the prosecution has lost the evidence. I wanted to mention a real case a real submission in front of our Justice and Electoral Committee because I think it makes it real for this Committee.