O'Rourke Denis: Third Readings —Text is incorporated into the Bound VolumeO'Rourke Denis: Third Readings —[Sitting date: 09 July 2013. Volume:692;Page:11832. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First):The bills formerly part of the Legal Assistance Amendment Bill are really just more of the bills being brought forward to wrench cost savings out of the overall justice budget. This time it is the legal aid scheme that is to suffer. The bills affect low-income New Zealanders’ ability to have effective legal representation for a range of matters for which such aid was previously available. The result will be many more self-represented cases more appeals less effective justice and as a flow-on effect more not less cost. So if cost savings were the prime motivation then they are a false economy.There are several specific reasons why New Zealand First must vote against the bills. Firstly new subsection 10(3A) in clause 7(2) of the Legal Services Amendment Bill says that the Legal Services Commissioner is to refuse legal aid if the applicant is in arrears for repayment on legal aid grants. That is subject to an interests of justice test. But this is intended really to encourage legally aided people to recommence payments on arrears relating to the payment of previous grants. Once they begin making repayments again they would become eligible for legal aid again. But clause 4(3) exempts only these applications—firstly those “by a patient … under the Mental Health (Compulsory Assessment and Treatment) Act 1992”; “proceedings under the Protection of Personal and Property Rights Act 1988;” to enable “a person to apply for a protection order under … the Domestic Violence Act 1995” and in respect of a proceeding that is or involves “recognition of a person as a refugee or protected person”. It has been argued that all these new provisions would be unlikely to reduce significantly the number of people receiving legal aid but I am not convinced. I think it is likely to cause injustice even if in only a few cases by making legal aid unavailable.I do not trust the commissioner’s discretion as far as the interests of justice test is concerned. By far the main reason why people fall into arrears is that they cannot afford the repayments; that is obvious. It is therefore unfair in those circumstances to withhold legal aid on a new application. It may easily be that the application is to get representation to defend an action against the applicant which this section could cause to be declined as far as legal aid is concerned. It seems to me therefore that the amount of money this will save makes the provision nothing less than penny-pinching of the worst kind. There are other and better ways of getting repayment than this Draconian measure. Clause 11A says that the amount owing is a debt and is therefore collectable as such under the general law. That should be enough. In addition clause 12A inserts a new section to enable deductions from income from social welfare benefits from State sector employees and from funds held by third parties such as banks. The effects of these provisions to allow denial of legal aid where there are previous legal aid debts not being repaid as required are bad effects on vulnerable people and are disproportionate to the very minor benefit claim in terms of saving money.I remain concerned that such people would in fact be denied legal aid unjustly and that the commissioner’s discretion perhaps administered by a relatively junior officer on the commissioner’s behalf will too often not be adequately assessed as an interests of justice case. It is difficult to see in fact how this provision will work properly anyway because if the applicant is eligible for legal aid under the principal Act because they have an arguable case and reasonable prospects of success or are obliged to defend proceedings against them then ipso facto the interests of justice test must have been satisfied anyway. Thus this section which is aimed at disqualifying the grant can never apply logically for interests of justice reasons so this is legal nonsense I think.Another defect in the bill is its reintroduction of a user charge for applications for legal assistance although it is now only $50 and not $100 as originally proposed. In many cases legal aid providers simply pay that charge since their clients on many occasions simply cannot afford to do so. At a time when more and more providers are exiting the business of providing legal aid services this seems like a self-defeating and bad public policy provision. Again it shows penny-pinching where the money saved by the Crown will be small but the effect on low-income people likely to be involved will be disproportionately high.Another reason why New Zealand First cannot support this bill is its introduction of interest to be charged on legal aid. Clause 12 requires that interest may be charged on all unpaid final legal aid debt. The intention is to incentivise prompt payment of legal aid debt but this is very unlikely given the financial position of most legally aided people. So the real effect is just to increase the person’s debt by the addition of interest. In clause 12 new section 40(1) states as follows—and I will just find that new section in the bill. It “applies to any amount that is payable in respect of a grant of legal aid made on or after the commencement of this section”. New section 40(2) states that the person must pay interest on that amount owing but new section 40(3) the following subsection states that it “applies to a debt (a prior debt) that is owned by an aided person to the Commissioner in respect of grant of legal aid made before the commencement of this section”. And subsection (4) states: “The Commissioner may by written notice require the aided person to pay interest in respect of the prior debt”. So there is a discretion in that case regarding those prior debts. Why should this be so? It does not really make any sense to me. On what basis is such discretion to be exercised?Parliament should avoid giving such unguided discretions. It is wrong in principle and it is not in accordance with general legal norms to impose such a provision retrospectively on prior legal aid debt. The people who signed up for legal aid did not sign up for that. They did not know that interest was going to be added later. That is wrong. The principle of charging interest at all is wrong in general. People who qualify for legal aid are by definition not able to afford it easily. Charging interest will make that even more difficult. The State should get repayment of legal aid of course but it should not be charging interest on top of that. The State actually pays no interest itself; the scheme is provided for from taxation. So the State should not be profiting from legal aid debts owed to it. In some cases the addition of interest will itself create hardship. There is discretion to waive the interest and the debt itself for that matter but this is likely to be too often withheld.These bills were badly conceived at the outset. They are another attack on the lowest-income people in the community. They are penny-pinching at the expense of an effective legal aid system. The Government has lost its way as to what legal aid is really about. It is really about access to justice. It is really about a fair way to assist people who are unable to afford a lawyer without State assistance or to assist people who have no choice but to defend proceedings brought against them. This bill will operate to make legal aid not available to some when it is most needed and it will add costs and interest on legal aid debts that make them even worse. New Zealand First will certainly vote against this bill because New Zealand First believes in fair access to justice; this Government clearly does not.