Little Andrew: Legal Assistance Amendment Bill — In CommitteeText is incorporated into the Bound VolumeLittle Andrew: Legal Assistance Amendment Bill — In Committee[Sitting date: 02 July 2013. Volume:691;Page:11582. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour):I rise to make a further contribution on the Legal Assistance Amendment Bill in the very important Committee stage. Having listened to the contribution of the Associate Minister of Justice Mr Borrows I simply reiterate the concern that the Labour Party has about the regime that is now to be set up for the recovery of a proportion of the costs associated with the appointment of counsel for the child.I am not reassured by the Minister’s attempt at reassurance just now and I refer him specifically to new section 131A of the Care of Children Act inserted by clause 27 and to the definition of “serious hardship” remembering that under the regime that the bill proposes there is first of all a presumption that the costs or part of the costs of counsel for the child will be levied across the parties. There is scope to have the share between the parties different across each party—I understand that. But the basis on which one party or both might not be levied at all is on the grounds of serious hardship.Serious hardship as defined in new section 131A(6) “(a) includes significant financial difficulties that arise because of—(i) the party’s inability to meet”—and this is the phrase I want to focus on—“minimum living expenses according to normal community standards;”. With all due respect to the Minister that language is somewhat vague. What is a judge to make of “minimum living expenses” and what is a judge to make of “normal community standards” understanding that that sort of language sounds like a very shifting sort of standard: the shifting sands of minimum living expenses and the shifting sands of normal community standards?It looks to me like this provision in its current form is more likely to cause more confusion and anxiety than to give any greater assurance. Perhaps the Minister could answer the question about what a judge is to make of that sort of language when it comes to this sort of cost recovery. I know it appears in the previous part of the bill but it relates also to the other powers of attachment that will now apply when it comes to cost recovery including for cost recovery of counsel for the child. It is also related to the part that allows not only attachment orders but that attachment orders can be up to 40 percent of the net pay of a grantee of legal aid or of someone who has had the benefit of counsel for the child or whose child has been represented by counsel for the child. Up to 40 percent of net pay can be the subject of an attachment order to meet these costs that can now be levied.There is nothing in the bill unless the Minister can point it out to us that suggests there is any potential for alleviation—for a judge to avoid levying a party or both parties who have had the benefit of counsel for the child in their care of the children proceeding—other than the general discretion of the court on the very vague “serious hardship” condition. This still remains highly problematic for us. This does not give us any reassurance that this bill will not lead to some people facing considerable hardship and considerable debt. Once the amount is levied it will be subject to interest and it will be subject to recovery action not the least of which would be an attachment order thatcould see up to 40 percent of a person’s net pay being extracted from them before their pay lands in their bank account.That has the potential to cause significant problems for people and to really create a great sense of fear in people who are in the position often not by choice where they are utilising in this case family proceedings where they are subject to this type of levying. That makes the legal aid scheme not a scheme of fairness not one of ensuring access to justice but a scheme that will become one of great fear. People will fear that they may be plunged into permanent or long-term hardship or poverty or destitution as a consequence. That is not good.As a matter of public confidence what we need is a legal aid scheme that does what it is intended to do. We need a scheme that provides legal assistance for those who simply do not have the means to meet the cost—one that provides legal assistance to those who are in a position where they must pay legal costs the costs of representation and advocacy in a situation where they would prefer not to or in a situation that they have not necessarily chosen. These sorts of clauses are enough to suggest that a legal aid scheme that is built on these sorts of provisions will not be a legal aid scheme worthy of the name.I call on the Minister in the chair the Associate Minister of Justice to give some clarity about just exactly what the Government has in mind when it comes to recovery of costs for these matters for the lawyer for the child under this part and what it means in terms of the test for serious hardship for a party to be afforded their minimum living expenses according to normal community standards. That is not meaningful to me and any black-letter lawyer looking at that is not going to be reassured that this is going to provide any assurance at all. That remains a very important and very serious question in terms of this very important piece of legislation.Given the changes that have already happened there are going to be costs and expenses that lawyers are no longer going to be willing to pick up whether it is the $50 user charge or other charges that may be imposed. Lawyers providing this sort of work under legal aid are simply not going to be able under the current regime to pick up those costs and they will fall on the parties. These are already impecunious parties—that is why they are seeking legal aid and apply for legal aid—and to then be subject to a further test of serious hardship does not look like good justice to me. Let us hear from the Minister on those points.