Wilkinson Kate: Legal Services Amendment Bill (No 2) — Third Reading 
Wilkinson Kate: Legal Services Amendment Bill (No 2) — Third Reading 
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KATE WILKINSON (National) 
: 
 I will start by thanking Ron Mark for his very flattering endorsements. On behalf of National I rise to oppose the bill for many of the reasons that my colleague Judith Collins has given but it does go deeper than that. This bill significantly raises the financial thresholds of legal aid eligibility to such an extent that 1.2 million New Zealanders will now be eligible for legal aid—an increase of some 450000. The importance of State-funded assistance has long been recognised in New Zealand both from within the legal profession and from without. It is all about providing access to justice for those who are unable to afford it themselves. But access to justice under this bill is paradoxically the very issue being threatened. The right to legal representation is worthless if effective representation is not available. 
One could even argue that this bill by its very nature breaches the New Zealand Bill of Rights Act which provides for the right to counsel in the context of criminal proceedings and to natural justice in criminal and civil proceedings. This bill actually puts such rights in jeopardy. Making more people eligible for legal aid is meaningless if there is insufficient will and ability amongst the legal profession to offer legal aid services. This bill is worthless without lawyers. But this bill is not just about lawyers; it is about access to justice. There simply must be enough lawyers willing to do legal aid work for nearly twice the number of legal aid recipients. If there are not enough lawyers for the existing 750000 people now eligible for legal aid then how on earth will there be enough lawyers for nearly twice that number? 
Opponents argue and have argued that we want more money for lawyers. It is the envy-type mentality that cannot see that if it is not made worthwhile for lawyers to undertake legal aid work then they simply will not do it. Why should they? Legal aid work is not compulsory; it is optional. Whilst lawyers do recognise a professional obligation in providing legal aid services they are not a charity. There is a fundamental obligation on the State to provide adequate funding to ensure that access to justice is not threatened. Ethically lawyers do not have to undertake legal aid work. Some do not but many do out of a sense of professional commitment. 
We are aware that this bill provides that the legal aid rates may—and I emphasise “may”—be reviewed from time to time. What does that actually mean? It is uncertain and it provides no assurance whatsoever. It gives no comfort to anyone that the rates indeed will be reviewed and reviewed in the right direction. 
The Ministry of Justice in a 1998 report on the reform of legal aid considered the key features of an effective legal aid system to include equity efficiency administrative simplicity and timeliness. None of those aspects seem to have been included in this bill. The report stated that the principle of equity has at its centre the concept of equality of arms and identified that it was a well-established principle that applies not only to procedural matters during a trial but also in terms of the hourly rates paid to prosecution and defence counsel. 
Equality of arms is an essential aspect of the right to a fair trial. In criminal proceedings a person charged with an offence must have a reasonable opportunity to prepare and present a defence on an equal footing to that of the prosecution. It is wrong for the State to bring criminal action against its citizens then to restrict their rights to defend themselves. Well this bill does exactly that. It is not equality of arms and it is not access to justice when criminal legal aid lawyers and therefore their clients are at a significant disadvantage to their prosecuting counterparts. They have fewer resources. They do not have the resources of the police in support prosecutors are allocated more paid hours for preparation and the remuneration rates are less. 
This is not an argument that criminal legal aid lawyers should be paid commercial rates but there is an argument that there should not be such a significant lower differential between Crown and defence rates. 
The Legal Services Agency wants to establish a pool of competent legal practitioners who can provide legal services to ensure the availability of competent legal practitioners who can provide adequate and appropriate legal advice and to improve the availability and quality of legal representation advice and information. This bill does none of that. 
 Anecdotally there is a shortage of lawyers who are prepared and able to undertake legal aid work. In previous addresses I have given examples of a survey of family law legal aid lawyers that was conducted recently. Only 10 percent of all firms in the region indicated a willingness to undertake legal aid work—that is 30 out of 306 firms. I refer also to the firm that in no uncertain terms regretfully had to cease legal aid work for reasons of remuneration but also perhaps more important because of burgeoning burdensome bureaucratic requirements. 
Only two Blenheim lawyers do legal aid work. A headline in the  
Marlborough Express 
 of 14 March 2006 says “Struggle for legal aid may get worse” and the article states: “The Community Law Centre is already struggling to find Family Court legal aid lawyers and expects things to ‘quickly get worse’.” We have a problem with having sufficient lawyers to do the work and this bill does not address it. Another article states: “Law firms refusing legal aid cases” and that is the article that states that only two Blenheim lawyers are doing legal aid work. 
Experienced lawyers are withdrawing from legal aid work. In the interests of access to justice they need to be encouraged back to do legal aid work. Young and inexperienced practitioners no longer see legal aid work as a viable career option. They need to be encouraged. The legal aid system must have at least some inviting features to ensure that it is appropriately adequately and professionally resourced. We need able experienced and competent lawyers in order to avoid miscarriages of justice and to avoid appeals that will require even more legal aid payment and will be at more cost to the taxpayer. 
This issue is not just about criminal work. Victims of domestic violence or any clients for that matter should not have to shop around for a lawyer who is willing to do legal aid work. Clients who are desperately in need of help and justice clients who need quick and proper access to legal representation and clients who need the urgent protection of our laws are the clients who are being disadvantaged and who are not being helped by this bill. These clients are being denied their right of access to justice simply because the supply of lawyers who are ready willing and able to undertake legal aid work is dwindling. 
Brian Connell 
: Getting the B team. 
KATE WILKINSON 
: They are lucky if they get the B team. They are lucky if they get any team at all. The supply is dwindling because of the neglect and failure to address the issues that so urgently need addressing. This bill is well intentioned but it is imbalanced it is unfair it certainly does not address the issue of access to justice and it is flawed. And for that reason regretfully National opposes it.