Graham Kennedy: Legal Assistance (Sustainability) Amendment Bill — First Reading 
Graham Kennedy: Legal Assistance (Sustainability) Amendment Bill — First Reading 
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Dr KENNEDY GRAHAM (Green) 
: 
 The Legal Assistance (Sustainability) Amendment Bill purports to be about sustainability. By that the Government means financial sustainability not the sustainability of justice. The bill seeks to amend an Act that the Government passed into law this very year. The bill is unique in my experience in this Parliament in containing no statement of purpose; the purpose is set out in the explanatory note and in the regulatory impact statement. 
The thrust of the bill is to curtail the burgeoning cost of legal aid. The cost has grown substantially in the past 3 years and the current level is held to be unsustainable in the long term. 
Simon Bridges 
: Shame on Labour. 
Dr KENNEDY GRAHAM 
: The level of legal aid expenditure we are told has shot up in the past 5 years. Since 2005 it has increased 13 percent per year with a 23 percent increase in 2009—shame on National. The gap between forecast expenditure and the Budget baseline is widening—further shame on National. The bill would amend the Legal Services Act 2011 to ensure that the legal aid system remains affordable in the future—good on National—and available to those who need it. 
We heard Chester Borrows mention the need to strike a balance between justice and efficiency and that that was a difficult balance to strike. He spoke about creative ways of trying to find that balance and then fell silent. 
There are three major drivers of legal aid costs pertaining to a grant: the price the number and their repayment. The options for managing future expenditure were assessed by the Government in its preparation of this bill according to three criteria: cost efficiency impact on recipients and impact on services provided. We have gone through the bill rather hastily since it appeared on the Order Paper only last Thursday—shame on National. 
Simon Bridges 
: What were you doing all weekend? 
Dr KENNEDY GRAHAM 
: That is what I did among other things. As we see there are eight specific provisions and they are as follows. Clause 5 relates to criminal matters eligible for legal aid. The effect is to bring the representation of the offender in eligible proceedings before the New Zealand Parole Board within the class of criminal matters. Clause 6 addresses the threshold of eligibility for criminal cases. It applies the means threshold that already applies to civil and family cases to cases in the criminal summary jurisdiction. In such cases the Legal Services Commissioner must refuse to grant legal aid if the applicant’s income or disposable capital exceeds a certain threshold—and we hear it is $22000 which is very low—with only a few exceptions. 
We move to clause 7 which adjusts the special circumstances for consideration of the means test for family and civil cases. The effect of the change is to focus on expensive cases. Then we have clause 8 which pertains to vulnerable parties and which tightens the merits tests for family cases by removing the criterion to take account of the interests of other vulnerable parties. Clause 9 ensures that eligible civil cases can be amended by Order in Council on the recommendation of the Minister thereby diminishing the prerogative of this Parliament. Clause 10 reintroduces a user charge of $100 for family and civil cases thereby imposing further financial strain on litigants—shame on National. Clause 19 specifies the nature of the user charges. Interest can be charged and the clause removes inflation in the form of the Consumers Price Index as a factor in assessing eligibility levels of income and disposable capital. So the ability to keep pace with the cost of living as a factor in eligibility is removed. What dare we say? Finally clause 20 addresses a defendant’s disposable capital that can be factored into determining eligibility for legal aid. These factors are now to include household furniture household appliances personal clothing and tools of trade. So in the Government’s shameful notion of a compassionate society a defendant can literally lose the shirt off his or her back to pay for a legal defence. 
In short the bill will have the result of limiting eligibility for legal aid limiting the number of legal aid grants increasing the amount of legal costs eligible people must themselves pay reintroducing the user charge for civil and family legal aid and enabling interest to be charged on legal aid debts. 
What are we to make of these changes in the name of judicial cost-cutting? For the sake of budgetary constraint the defendant in the New Zealand judicial process will have less access to legal assistance than before. I note the conclusion in the regulatory impact statement: “The introduction of income and asset thresholds for the criminal means test will be in tension with section 24(f) of the New Zealand Bill of Rights Act providing for the right to an affordable defence. It could also delay some court cases if judges defer proceedings because of inadequate representation.” 
Apart from that judgment the bill might be seen as also impacting on other sections of the New Zealand Bill of Rights Act. Section 23(1)(b) requires that we shall have the right to consult and instruct a lawyer without delay and be informed of that right. Section 25(a) refers to the right to a fair and public hearing by an independent and impartial court. Section 27(1) states: “Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights obligations or interests protected or recognised by law.” Mr Bridges might do well to refresh his memory of the New Zealand Bill of Rights Act. 
Simon Bridges 
: Which section? 
Dr KENNEDY GRAHAM 
: Sections 23(1)(b) 25(a) and 27(1). 
Simon Bridges 
: What are those ones about? Remind me. 
Dr KENNEDY GRAHAM 
: The member was not listening. Mr Bridges needs to listen as well. 
In the Green view the need to cut budgetary cost does not justify the measures envisaged in this bill which will have the effect of depriving people in tough circumstances of their traditional legal rights of access to justice. It is in fact no laughing matter. It is in short a punitive bill. We shall be opposing this bill and assuming it is referred to a select committee—which is not guaranteed—we shall be following it to see whether and how improvements can be made.