Legal Services Amendment Act 2013

1: Title
This Act is the Legal Services Amendment Act 2013.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council, and 1 or more orders may be made appointing different dates for different provisions.
2: If any provision of this Act has not earlier been brought into force under subsection (1), it comes into force on the day that is 1 year after the date on which this Act receives the Royal assent. Section 2 brought into force 2 September 2013 Legal Services Amendment Act 2013 Commencement Order 2013
3: Principal Act amended
This Act amends the Legal Services Act 2011 OIC SR 2013/308 2013-09-02 Legal Services Act 2011 see section 2(1) This Act or parts of this Act can come into force earlier by OIC.
4: Interpretation
1: The definition of prescribed repayment amount section 4(1) sections 19(1) and 20 sections 20(1) and 21
2: Section 4(1) specified application
a: under section 47 in respect of certain proceedings before the Waitangi Tribunal; or
b: by a patient or proposed patient in respect of proceedings under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
c: by a care recipient or proposed care recipient in respect of proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
d: in respect of proceedings under the Protection of Personal and Property Rights Act 1988; or
e: by a victim in respect of—
i: an inquest held by a coroner for the purposes of Part 3 of the Coroners Act 2006; or
ii: a hearing of the New Zealand Parole Board (other than one in a proceeding specified in section 6(c)(i)
iii: any victims' claims proceedings; or
f: to enable—
i: a person to apply for a protection order under Part 2 of the Domestic Violence Act 1995, or an order relating to property under Part 3 of that Act; or
ii: a person who has applied for an order described in subparagraph (i)
g: in respect of a proceeding under Part 2 or 3A of the Children, Young Persons, and Their Families Act 1989; or
h: in respect of a proceeding that is specified in section 7(1)(j) to (n) and that involves, or is connected with, the recognition of a person as a refugee or protected person user charge section 18A .
5: Proceedings for which legal aid may be granted: criminal matters
Section 6
c: proceedings before the New Zealand Parole Board that—
i: are held under section 27, 65, or 107 of the Parole Act 2002 (which relate to postponement orders, recall orders, and orders under section 107 of that Act); or
ii: otherwise concern an offender who is entitled, under section 49(3)(c) of the Parole Act 2002, to be represented by counsel in the proceeding:
d: proceedings in the High Court on an application under section 68 of the Parole Act 2002 (which relates to appeals against postponement orders, section 107 orders, and final recall orders).
6: When legal aid may be granted: civil matters
1: Section 10
2: The Commissioner must refuse to grant legal aid to an applicant whose income or disposable capital exceeds the relevant maximum level prescribed in regulations, unless the Commissioner is satisfied that there are special circumstances, having regard to—
a: the likely cost of the proceedings to the applicant; and
b: the applicant’s ability to fund the proceedings if legal aid is not granted.
2A: However, in the case of an application that comes within any of paragraphs (b) to (d) and (f) to (h) subsection (2) paragraph (a) or (b)
2: Section 10
3A: The Commissioner may, unless the interests of justice require otherwise, refuse to grant legal aid to an applicant if—
a: any amount payable by the applicant in respect of a repayment of a previous grant of legal aid is in arrears; and
b: the application made by the applicant does not come within any of paragraphs (b) to (d) and (f) to (h)
3: Section 10(6)(c
7: Decision on application for legal aid
Section 16
5: This section is subject to section 16A
8: New section 16A inserted
The following section is inserted after section 16
16A: Use of automated electronic systems for certain grants of legal aid
1: The Commissioner may use an automated electronic system to grant legal aid to a natural person if—
a: the person requires the grant for proceedings in respect of an offence punishable by a maximum term of imprisonment of not less than 6 months; and
b: neither the income nor the disposable capital of that person exceeds the relevant maximum level prescribed in the regulations.
2: A grant made in the manner authorised by subsection (1)
3: Where an error is made in a grant of legal aid made in the manner authorised by subsection (1)
4: Subsection (2) subsection (3)
5: A grant made in the manner authorised by subsection (1)
6: Every grant made in the manner authorised by subsection (1) subsection (7)
7: The Commissioner may from time to time, by notice in the Gazette subsection (1)
8: A notice under subsection (7)
9: Conditions on grant of legal aid
Section 18
7: This section does not apply to—
a: applications for legal aid that come within any of paragraphs (a) to (e)(ii)
b: applications for legal aid by a person of a class specified in regulations as exempted from the application of this section; or
c: applications for legal aid in respect of a proceeding of a class specified in regulations as exempted from the application of this section; or
d: a grant made in the manner authorised by section 16A(1)
e: applications for legal aid by a person who is charged with or convicted of a prescribed offence and to whom section 9(2) does not apply.
10: New section 18A inserted
The following section is inserted after section 18
18A: User charge payable by aided person
1: Every grant of legal aid for a civil matter, other than a grant to which subsection (4)
2: The condition relating to the user charge is satisfied once the user charge is paid and no further user charges are payable in respect of the grant to which the condition attaches.
3: The lead provider is authorised to receive the user charge from, or on behalf of, the aided person and may—
a: decline to provide any services under the grant of legal aid until the user charge under subsection (1)
b: if the user charge has not been paid but any services of that kind have been provided, recover the user charge from the aided person.
4: This section does not apply to—
a: a grant of legal aid made on a specified application; or
b: an application for legal aid by a person of a class specified in regulations as exempted from the application of this section; or
c: an application for legal aid in respect of a proceeding of a class specified in regulations as exempted from the application of this section.
5: A grant of legal aid is also within subsection (4)
11: Amount payable by aided person to Commissioner
1: Section 33 under the conditions in respect
2: Section 33 ; and
c: any interest payable under section 40
d: the amount of any expense reasonably incurred by the Commissioner for the purpose of enforcing or securing a debt payable to the Commissioner by the aided person, but only if the expense is of a kind specified by the regulations for the purposes of this paragraph.
12: Amounts payable under conditions of grant are debts due to Commissioner
1: The heading to section 34 under conditions in respect
2: Section 34
1: An amount payable to the Commissioner as a condition of a grant of legal aid (whether as an interim repayment or a repayment) and any other amount payable to the Commissioner in respect of the grant may be recovered in any court or tribunal of competent jurisdiction as a debt due to the Commissioner.
13: New section 40 substituted
Section 40
40: Interest on unpaid legal aid debt
1: Subsection (2) section 13 2013
2: An aided person must pay the Commissioner interest, calculated in accordance with, and at the rate or rates prescribed by, the regulations on any debt that is owed, during any period specified in the regulations, by the aided person to the Commissioner in respect of a grant of legal aid.
3: Subsection (4) prior debt 2013
4: The Commissioner may, by written notice, require the aided person to pay interest in respect of the prior debt (whether or not the person is in default), and then, as from the date stated in the notice for the purpose, subsection (2)
5: Despite subsection (2)
a: on any interim repayment; or
b: unless the regulations otherwise provide, on any interest.
6: The interest must be calculated and paid in accordance with the regulations.
7: Subsection (4) section 13 2013
14: New headings and sections 41A to 41J inserted
The following headings and sections are inserted after section 41 Deduction notices
41A: Interpretation
In this section and in sections 41B to 41J benefit
a: means a benefit within the meaning of the Social Security Act 1964; but
b: does not include—
i: an orphan's benefit payable under section 28 of the Social Security Act 1964; or
ii: an unsupported child's benefit payable under section 29 of that Act; or
iii: a child disability allowance payable under section 39A of that Act; or
iv: a disability allowance payable under section 69C of that Act deduction notice section 41B overdue amount
a: any part of an amount of that kind; and
b: an amount of that kind that may not be recovered by civil action in a court of law because of the Limitation Act 2010 payment
a: salary or wages:
b: a retiring allowance or pension or other payment of a similar nature:
c: a benefit:
d: weekly compensation under the Accident Compensation Act 2001:
e: a bonus or an incentive payment:
f: commission:
g: consideration for work performed under a contract for services:
h: repayment of, or interest on, money held by a bank to the credit of an aided person (within the meaning of section 41E(3) third party 1957 No 87 ss 2(1), 79
41B: Deduction of overdue amounts
1: This section applies whenever the Commissioner has reminded an aided person in writing of the person's obligation to pay an overdue amount or has taken any other action to obtain payment of the overdue amount.
2: The Commissioner may issue, in writing, a deduction notice requiring a third party to deduct an amount specified in the notice due from any payment that is payable or will become payable by the third party to the aided person, whether that payment will be made—
a: on the third party's own account; or
b: in the third party's capacity as an agent or a trustee; or
c: for any other reason.
3: The Commissioner must specify in the deduction notice—
a: whether the deduction is to be made as a lump sum or by instalments; and
b: the time or times by which the amounts deducted must be paid to the Commissioner; and
c: the date on which the deduction notice takes effect, being a date not earlier than the date on which it was issued.
4: The Commissioner must give the aided person a copy of the deduction notice.
5: A deduction notice is revoked when the Commissioner notifies the third party in writing to that effect or issues a new deduction notice.
6: The Commissioner—
a: may revoke a deduction notice at any time:
b: must revoke the deduction notice if satisfied that the overdue amount has been paid.
7: Every deduction notice is subject to sections 41C to 41J 1964 No 136 s 86A
41C: Issue of deduction notice to State sector employer
In any case where an aided person is employed within a department (within the meaning of the State Sector Act 1988), a deduction notice may be issued to the chief executive of that department in respect of any salary or wages payable to the aided person. 1964 No 136 s 86B
41D: Discharge of obligation
In any case where a third party deducts, under a deduction notice, any money payable to an aided person, the aided person is, to the extent of the amount deducted, discharged from his or her obligation to pay the overdue amount. 1964 No 136 s 86C
41E: Deduction notices issued to banks
1: Where the third party is a bank, any money held by the bank to the credit of the aided person is subject to the provisions of section 41B
2: For the purposes of this section, bank
3: For the purposes of this section, money held by the bank to the credit of the aided person
a: the deposit or depositing is on current account:
b: the money is to be at interest at a fixed term or without limitation of time:
c: the aided person has made any application to withdraw or uplift the money.
4: For the purposes of this section, money on deposit with a bank is deemed to be to the credit of the aided person if the money—
a: is held in a joint bank account in the name of the aided person and 1 or more other persons; and
b: can be withdrawn from the account by or on behalf of the aided person without a signature being required at the time of that withdrawal from, or on behalf of, the other person or persons. 1964 No 136 s 86D
41F: Making of deductions
1: Any person who makes a deduction under a deduction notice is deemed to be acting—
a: on the authority of the aided person and any other person concerned; and neither the aided person nor that other person has any claim against the third party or the Commissioner or the Crown in respect of that deduction; and
b: on behalf of the Commissioner; and, without prejudice to any other remedies against the aided person or any other person, any amount deducted must be held in trust for the Commissioner and is a debt due to the Commissioner and may be recovered in any court or tribunal of competent jurisdiction.
2: A third party must, on request, give the aided person a statement in writing of any amount deducted, and of the purpose for which the deduction was made. 1964 No 136 s 86E
41G: Offences in relation to deduction notices
1: Every person commits an offence and is liable on conviction to a fine not exceeding $2,000 who—
a: fails to make any deduction required by a deduction notice; or
b: fails, after making a deduction, to pay the amount deducted to the Commissioner within the time specified in the notice; or
c: permits payment to or on behalf of any person, other than the Commissioner, of any amount deemed to be held in trust for the Commissioner under section 41E or 41F
2: Every employer commits an offence and is liable on conviction to a fine not exceeding $1,000 who dismisses an employee or alters an employee's position in the employer's business or undertaking to the employee's prejudice by reason of a deduction notice having been issued to the employer. 1957 No 87 s 106A; 1964 No 136 s 86F
41H: Protected earnings
1: Despite anything in sections 41B to 41G
2: For the purposes of this section, the aided person's net ordinary weekly pay for a week is the balance left after deducting from the aided person's ordinary weekly pay (as defined in section 8 of the Holidays Act 2003) the amount of tax required to be withheld or deducted in accordance with the PAYE rules of the Income Tax Act 2007 if that ordinary weekly pay were the only salary or wages paid to the aided person by the employer in respect of a week.
3: For the purposes of this section, where deductions are required to be made from a payment of a kind described in any of paragraphs (b) to (d) section 41A
a: the payment is deemed to be salary or wages; and
b: the person required to make the payment is deemed to be the employer of the aided person. 1964 No 136 s 86G
41I: Penalty for late deductions
1: A third party is liable to pay to the Commissioner a penalty calculated in accordance with subsection (2)
a: deduct the amount required by the notice; or
b: pay any amount deducted under the notice to the Commissioner by the time specified in the notice.
2: The penalty referred to in subsection (1)
a: 10% of the amount in default or $5, whichever is the greater:
b: for each additional month or part of a month in which the amount in default or any part of the amount has not been deducted or, as the case may be, has not been paid to the Commissioner, a further penalty of 2% of that amount or part of the amount or $1, whichever is the greater.
3: The Commissioner may, in his or her discretion, remit the whole or part of a penalty if he or she is satisfied that the failure to make the deduction or the payment was due to circumstances reasonably beyond the third party's control, or that, in all the circumstances, the imposition of that penalty would be inequitable.
4: If the Commissioner decides to remit the whole or part of any penalty and any amount of the penalty has been paid under this section, the Commissioner may refund any excess.
5: An amount payable to the Commissioner under subsection (1) 1964 No 136 s 86I
41J: Notices given to third parties
The provisions of section 115 apply to a deduction notice given to a third party under section 41B 1964 No 136 s 86J Decisions not to recover debt, write-offs, and refunds .
15: Commissioner to refund excess payments
Section 44
2: In assessing the cost of services for the purposes of subsection (1)(b), any interest paid under section 40
16: Reconsideration
1: Section 51
1A: A lead provider whose claim has been declined under section 99(5)
2: Section 51(2) The application An application
17: Grounds for review
1: Section 52(2)
da: any decision to depart from, or to refuse to depart from, fees prescribed by regulations under section 114(1)(cc) .
2: Section 52
3A: A lead provider may apply to the Tribunal for a review of the Commissioner's reconsideration of a decision referred to in section 51(1A)
a: manifestly unreasonable; or
b: wrong in law.
18: Approval
Section 77(2) any
19: Review Authority established
1: Section 84(2) and may appoint 1 or more Deputy Review Authorities
2: Section 84(3) The person appointed as the Review Authority A person appointed under this section
20: New sections 87A and 87B inserted
The following sections are inserted after section 87
87A: Deputy Review Authority
1: A Deputy Review Authority appointed under section 84(2) has the functions, powers, duties, and immunities of the Review Authority and every reference to the Review Authority in sections 85 to 87 and in Part 3 of Schedule 3 is taken to include a reference to a Deputy Review Authority.
2: This section is subject to section 87B
87B: Scope of functions of Deputy Review Authority
1: A Deputy Review Authority may review decisions only if—
a: the Review Authority is absent from duty for any reason; or
b: there is a vacancy in the office of Review Authority; or
c: the Review Authority has assigned a decision or a class of decision to the Deputy Review Authority in the interests of avoiding—
i: delay; or
ii: the perception of, or any actual, conflict of interest or other impropriety.
2: If there are 2 or more Deputy Review Authorities, the Review Authority must nominate 1 Deputy Review Authority (the nominated deputy subsection (1)(c)
3: A nomination—
a: must be in writing; and
b: is revocable at any time, in writing, by the person who made it or by his or her successor in office; and
c: until revoked, continues in force according to its terms even if the person who made it has ceased to hold the office of Review Authority.
4: Despite subsection (1) subsection (1)
a: that Deputy Review Authority is the nominated deputy; or
b: the decision has been, or is part of a class of decision that has been, assigned to that Deputy Review Authority under subsection (1)(c)
5: The fact that a Deputy Review Authority purports to exercise or perform, or to have exercised or performed, any function, duty, or power under this section or under an assignment under subsection (1)(c) subsection (2)
21: Lead provider to claim for payment
Section 97(2)(a) , less the user charge required to be paid by the aided person provider
22: Secretary to refer claim to Commissioner for decision
Section 99
4: The Commissioner must decline—
a: any claim to the extent that it exceeds the maximum grant specified in the grant; and
b: where a claim or part of a claim is for, or is determined by the Commissioner to be for, work of a kind for which a fee is prescribed by regulations pursuant to section 114(1)(ca) section 114(1)(cc)
c: any claim to the extent to which it is for a disbursement of a type not approved for payment by the Commissioner; and
d: any claim or any part of a claim that has been determined to be excessive or inaccurate by an examination under subsection (2); and
e: if the user charge has not been paid by the aided person, an amount of the claim that is the equivalent of that charge.
5: The Commissioner may decline any claim that was not made in accordance with the time frame referred to in section 98.
23: Cancellation
1: Section 103(1)
c: the provider takes an unauthorised payment from or in respect of a person in relation to any legal aid service or specified legal service provided to that person: .
2: Section 103(4)(a) or will be deemed to have received it by virtue of section 115(2) receive the notice
3: Section 103
5: In any case where a notice of cancellation is posted to a person at the person's last known place of residence or business in New Zealand and the Secretary knows or believes that the address is no longer current, then—
a: the notice is not invalid merely because of that knowledge or belief; and
b: the fact that the person has not received the notice is, despite section 115(2), only relevant if it is proved that the failure occurred through no fault of the person.
24: Regulations
1: Section 114(1)
ca: prescribing fees, whether by specifying amounts or providing for 1 or more methods of calculating amounts, for items of work undertaken by providers for the purposes of proceedings (other than victims' claims proceedings) described in the regulations, which fees may differ depending on factors stated in the regulations, including, without limitation, 1 or more of the following:
i: the subject matter of the proceeding:
ii: the court or tribunal in which the proceeding or an application or a matter in the proceeding is to be determined:
cb: exempting, in accordance with subsection (8), any class of proceeding from any specified regulation made under paragraph (ca)
cc: providing for the Commissioner to authorise fees that depart from the fees prescribed under paragraph (ca) paragraph (cd)
cd: prescribing criteria for the purposes of any authorisation that the Commissioner is empowered to give under paragraph (cc) .
2: Section 114(1)
ea: prescribing the amount of the user charge, including different amounts for user charges relating to different classes of proceeding: .
3: Section 114(1)
ia: specifying kinds of expenses or payments for the purposes of section 33(d)
4: Section 114(1
k: prescribing the way or ways in which the interest under section 40 .
5: Section 114(1)(o)(ii) or 18A section 18
6: Section 114(1)
w: prescribing the time frame or time frames in which claims for payment for legal aid services or specified legal services may be made, and different time frames may be prescribed for different classes, stages, or levels of complexity of services provided: .
7: Section 114(2) including the calculation of interest, calculating amounts,
8: Section 114(5) to (7)
25: Service of notices, etc
Section 115(1)(b) and (c) or business of residence
26: Schedule 3 amended
Schedule 3
24: Vacation of office
1: The Review Authority may at any time be removed from office by the Minister for incapacity affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Minister.
2: The Review Authority may at any time resign by written notice to the Minister.
3: The Review Authority ceases to hold office if he or she is adjudged bankrupt under the Insolvency Act 2006.
27: Transitional provision
1: In this section, amendment
2: An application for legal aid received by the Commissioner before an amendment to the principal Act by this Act comes into force must be considered and determined as if the amendment had not been made.
3: An amendment to the principal Act by this Act does not affect the administration of a grant of legal aid made before the amendment comes into force and the grant must be administered as if the amendment had not been made.
4: Despite subsection (3), section 10(3A) section 6(2) section 6(2)
5: Until the commencement of section 41 section 16A(8) section 8 section 16A(7) Regulations (Disallowance) Act 1989
6: Despite subsection (3) section 13
28: Liability for fee and expenses incurred in lodging prior caveats
1: This section applies where, in connection with a grant of legal aid made before the commencement of this section, a caveat (a prior caveat section 15(4) section 18(4)
2: The Commissioner may recover the fee for, and any expenses reasonably incurred in, lodging a prior caveat from the aided person as a debt due to the Commissioner, to the extent that the Commissioner or the Legal Services Agency has not previously been reimbursed for the fee and the expenses.
3: No payment made to the Commissioner or the Legal Services Agency in reimbursement of the fee for, and any expenses reasonably incurred in, lodging a prior caveat may be recovered or claimed by way of set-off.