Parker David: Legal Services Bill — Third Reading 
Parker David: Legal Services Bill — Third Reading 
[Volume:671;Page:17783] 
Hon DAVID PARKER (Labour) 
: 
 I want to speak in support of the Legal Services Bill. Before I do I think it is good that members here are being a bit careful not to criticise all people who work on the legal aid rosters because most people who work on the legal aid rosters do a good job and do not overcharge. None the less Dame Margaret Bazley did find evidence of poor practice and I must admit that I was surprised on the Justice and Electoral Committee to learn that some legal aid lawyers doing low-level criminal cases in South Auckland were earning $250000 per annum at the cost of taxpayers. That seemed to me to be a bit excessive for low-level legal aid cases. 
We heard not just in Dame Margaret Bazley’s complaints but also from retired Justice Hansen—I think he is Sir John Hansen now. He was the executive High Court judge in the South Island for a long time and a very practical man as well as a good judge. He said that one of the problems was the method of allocation of legal aid briefs. So he supported the change proposed by the Government in this legislation to the preferred lawyer rule—effectively the choice was always given to a litigant to choose their own lawyer. There are occasions where it is important that litigants have continuity of lawyer such as with cases involving language barriers and instances where the accused suffers underlying mental health problems and has had a history of involvement with a particular lawyer. It is helpful for everyone to have continuity otherwise people have to go back over ground that has previously been traversed. Some of the issues relating to mental health difficulties should be brought to the court’s attention and the administration of justice is improved through the facilitation of that by a lawyer who has previously been involved. But that does not mean to say that in all cases there should just be the automatic right to choose one’s lawyer because we found that some of those cases had an association with the abuses of the legal aid system. So we agree that the removal of the preferred lawyer—that is the right of people who are getting their legal expenses paid for by the Crown to choose the lawyer that they want—should not always be so for minor cases. It becomes a bit more difficult in more serious cases where someone might be at risk of losing their liberty for a longer period of time. We think it is then appropriate that the person who is accused has some control as to the lawyer who is representing their interests. 
Some people say we should not have legal aid but I disagree with that view. It is a wrong proposition partly because the court processes are generally improved through people having legal representation. People who are of low income and who are charged with a crime often cannot afford a lawyer. If they are left without a lawyer they suffer an outcome different from someone who can afford a lawyer. It does not seem to be a good principle of justice that there is a different outcome according to the amount of money someone has in their wallet. There are also flow-on costs to the Crown in terms of less efficient court processes and the cost of ongoing disputes where people feel they have not had a fair trial and will be more likely to appeal and to object to the consequences. Their families will have a sense of injustice and confidence in our criminal justice system will be undermined. So it is important that we have legal aid available. 
I want to refer to a couple of other issues. Legal aid costs are significant and they are growing. What I think is wrong with the system at the moment is the “three strikes” legislation which drives up legal aid costs. There is no doubt that if someone is facing a charge for a crime that would be one of their three strikes then they will be more likely to defend that charge because they do not want three strikes. They will be advised by their lawyer that the consequences of the charge are so significant that rather than plead guilty they should defend the charge. There is no doubt about that in my view. So one area where we could be saving costs to the Crown is by doing away with the silly “three strikes” legislation. 
Another area is that the Crown through the police needs to exert some control on how complex it makes some of these trials. The prosecution controls how long some cases are to a certain extent just as the defence does. The increasing complexity of all trials be they civil or criminal needs to be addressed because the quality of justice has not changed much. There are no more or fewer people getting off charges when they really are guilty and ought to be convicted or being convicted when they are innocent. That sort of thing has not changed over time yet trials are becoming longer and longer and therefore more and more costly. Every additional technical step the prosecution takes has to be matched by a technical and costly act in defence on behalf of the accused which is at the cost of legal aid if the person on trial is in receipt of legal aid and at the cost of people’s pockets if the person on trial is not in receipt of legal aid. There is a need for rigour. How do we impose that rigour? Well it requires a change of practice within the ministries. It is not so much a matter of law; it requires a change in practice. It also in my opinion requires judges to control their courts and to say that there is an interest in justice in the expeditious conduct of proceedings. I said yesterday and I still believe that the quality of justice cannot be divorced from its accessibility. If there is a fantastic but inaccessible justice system that no one can afford to access it is not serving the overall interests of society in just resolution of disputes in terms of someone being convicted of a crime or not convicted or in terms of the resolution of a civil dispute. We have to control the cost of justice. There needs to be rigour within prosecution. 
One also needs rigour in the courts. Judges must control their courts. I saw a change during my period in practice when judges moved from being pretty strict growly generally old men on the bench. But my goodness they had a sense of fairness and they controlled their courts. If a judge saw a lawyer taking too long trying to delay something coming on for trial making it too complex or asking too many preliminary or interlocutory matters prior to trial they stood on it and stopped it. It is their right to and their duty to if they are going to cause the efficient administration of justice. I think our justice system has gone back in that regard and we need to get back some of that rigour. We see the increasing length of judgments. We have only about 350 decided civil matters in the High Courts in the whole of New Zealand between all of the judges. About 350 civil judgments between all of those judges in the whole of New Zealand were defended issues. Not enough matters are coming to trial because the cost of trials has become too high. The bill covers civil as well as criminal jurisdictions. Legal aid is but one part of what we need for a cost-effective fair and just system. We must control the length and cost of processes despite the fact that we have only 350 judgments in the High Court I was told. We should look at the length of law reports. They are just as long as they were when we had far far more decisions coming out of the High Court. The length of every judgment has increased. Too many of the reports read like books or in my opinion like academic treatises. It is important that we have the occasional academic look at a point of law but that is not true of most cases. Most cases can be decided relatively simply on their facts without embarking on some jurisprudential consideration of the finer points of the law. We need more practicality at that end of the justice system as well. 
The Legal Services Bill in so far as it changes the rules for preferred counsel is a valid attempt to control expense but we ought not to pretend that it is actually the fundamental driver of cost. The fundamental drivers of cost—whether they be in legal aid cases or non - legal aid cases—need to be controlled. The High Court Rules and the District Court civil rules need to be changed. They are too complex. We do not have enough oral judgments being delivered. That is another step that could be improved through better judicial practice.