27 November 2009 Media Statement

Dalziel: Legal aid report exceeds expectations

Labour Justice spokesperson Lianne Dalziel says she is impressed with the scope and quality of recommendations in Dame Margaret Bazley’s Legal Aid Review report.

Lianne Dalziel, who made a submission (attached) to the review, said that the report, published today, exceeded her expectations.

“It pulls no punches in terms of identifying the problems the scheme has faced and makes realistic proposals for addressing those problems.”

Lianne Dalziel, who is a lawyer by profession, expressed disappointment at the report’s identification of corruption among some lawyers, as well as the failure of a system that allowed it to go unchecked for so long.

“The Minister's initial response to the recommendations is very positive, and Labour will certainly be willing to work with the government as it develops a better system.”

Lianne Dalziel said she was particularly pleased that the report recommends expanding the Public Defence Service initiative being trialled in Auckland and making greater use of Community Law Centres, along with bulk funding for legal aid lawyers and contracting in specialist lawyers where needed.

"These were all recommendations that I included in my submission and provide a solid framework for addressing the flaws in the current system," Lianne Dalziel said.

Submission to the Legal Aid Review attached:

Improving the Legal Aid System (9 October)

Introduction
The Labour Party welcomes the review of the Legal Aid system, but believes that the results of such a review will best be utilised by feeding into a broader assessment of our legal system.

It is unfortunate that the Opposition has not been treated as a stakeholder in this review given that decisions taken now will have an impact across governments and decision-making is surely enhanced by cross-party agreement where it can be found.

The Discussion Paper repeats the problem that has occurred overseas in seeking to address this challenging set of issues. After identifying that the major increase in costs lies with criminal legal aid – due to the increase in police numbers and consequential clearance rates and criminal charges – much of the paper seeks to address questions on civil legal aid.

A quality regulatory impact analysis would have required this document to contain a clear statement of the problem, a series of options for addressing the problem, an analysis of the risks and opportunities the various options present and an invitation to submitters to assist in the cost benefit analysis that will have to be contained in the RIS when the proposals get to cabinet.

Instead the paper focuses mainly on the challenges facing the current legal aid system. This means that it is not really a first principles review, as it assumes retention of an agency to assess eligibility for legal aid measured against statutory criteria and the funding of private sector lawyers to undertake approved cases, with a right of appeal to an agency that costs nearly half a million dollars a year to run without adding any value to the delivery of legal services. The option of expanding the Public Defence Service is raised at the end of the paper instead of being presented as an upfront alternative.

Because an opposition party does not have the resources to undertake the level of analysis that is required, we have highlighted the aspects of the Discussion Document that appear to present solutions worthy of further analysis and also to propose some areas of further work, which should enable the review to produce a result that will assist in achieving the very worthy aim of ensuring access to justice in both criminal and civil jurisdictions.

It is also time that the elephant in the room was stated and addressed in a pragmatic way. The fees charged by lawyers in private practice cannot be matched by the government through legal aid. We therefore need to be open to exploring alternative ways of providing state assistance to people who cannot afford lawyer’s fees and who find themselves up against people who can (including the state).

There is a difference between criminal and civil litigation, which requires us to think of them as quite separate issues. Given that the major increase in legal aid costs are in the criminal sector, it is time to think outside the square and ask whether the current system is capable of being fixed or whether we need to go down a different track in providing legal support for people who have been charged with crimes. Given that the paper identifies the increase in police, apprehensions and charges as the main source of the ballooning criminal legal aid bill, maybe we need to accept that New Zealand does not have the capacity to maintain the public private partnership that the current system represents. Maybe we need to move to a NZ Public Defence Service as has been trialled in Auckland.

And then we turn to the civil jurisdiction where we find not one but several strands that could be addressed in very different ways. Maybe we need to think of our community law centres as the regional hubs and the citizens advice bureaux as spokes in a network of legal advice and representation in the civil arena, using a blend of salaried lawyers employed by the CLCs, with contracted in barristers and solicitors from the private sector to undertake publicly funded family court work and to help address cases involving multiple plaintiffs.

In many respects it is worthwhile breaking down the civil cases into their component parts and seeking to address them individually, remembering that they are not the primary cause of the blow-out in legal aid costs.

Criminal Legal Aid
As far as criminal legal aid and the work of duty solicitors are concerned, it would appear that an obvious alternative is to build a network around the Public Defence Service, which could include the Duty Solicitor’s scheme. The PDS could also be given authority to contract in the services of experienced barristers for complex cases.

Using the Public Defence Service as the hub of activity around criminal matters would build expertise within the defence and relationships with prosecutors that could enable oversight of the police diversion service, home detention and ultimately plea-bargaining to become an effective mechanism for ensuring an outcomes focus to our criminal justice system.

In a nutshell, while we have an adversarial legal system that requires the Crown to prove beyond reasonable doubt that a crime has been committed, there will be an obligation to provide lawyers to defend those who have been charged with a crime and who cannot afford representation.

There is little point trying to meet the increasing costs of fees charged by barristers and solicitors and this is where a funded network of experienced salaried public defenders would standardise a high quality of defence. Such an approach would see the removal of the need for the Legal Services Agency and the Legal Aid Review Panel for criminal justice cases.

It would also provide a springboard to an inquisitorial approach to criminal justice should a future government seek to move down that track.

Civil Legal Aid
We suspect that the administrative framework that has been built around legal aid is unnecessarily complex and that a much simpler process could be devised that would focus on bulk-funding firms that provide state assisted access to legal advice and representation. A relatively simple system of audit could ensure both the correct allocation of the funding, as well as value for money.

The network of Community Law Centres should be regarded as an asset in terms of providing legal advice as should the Citizens Advice Bureaux. Again the availability of lawyers from private practice is a critical component to the effective delivery of advice, however there is no reason why the community law centres should not become the hub of activity around which advice and back-up can be provided. Justice is about the ‘little guy’ being able to take on the ‘big guy’ when the case has merit.

Civil actions - It is important to reflect on why access to a justice system is important for the resolution of disputes. It was designed to ensure that people didn’t take matters into their own hands – the peaceful resolution of conflicts. The problem is that legal fees are too high for the average income-earning person to cover especially when the person concerned is in the right.

There are issues around the Disputes Tribunal that need to be considered - too many cases see the ‘little guy’ pitted against experienced expert employees of the ‘big guy’ and there is nothing they can do when the case is decided by a referee persuaded by the expertise over the affected party - this is particularly so when dealing with an insurance company or businesses which usually have an in-house lawyer.

There also needs to be a mechanism for enforcing debt that is low cost. Once a debt has been established, the cost of getting it paid often outweighs the value of the debt - hence a lot of small businesses just write off these debts.

Class Actions/Representative Actions – Where several individuals have a potential cause of action in relation to a finance company failure or a Ponzi scheme – then there needs to be a form of legal aid available to fund the action regardless of individuals falling within the affected range having the means to pay.

In other words, there is a need to move away from individual entitlement to a collective entitlement, with a portion of any settlement or compensation being returned to the pool. It may be that this could be managed through community law centres and expert legal advice could be contracted in on an ‘as needs’ basis.

Exemplary Damages cases – the community law centre option may also be a solution in exemplary damages cases as there is concern about the vast sums of money that are being paid to a small number of lawyers who are pursuing damages claims on behalf of a large number of litigants usually against the Crown. There is a vast amount of work being undertaken by the LSA and the LARP to ensure that each individual claim has merit; whereas a negotiated settlement through community law may produce much more beneficial outcomes for those affected by past actions than a possible financial result in the court.

There is also a reasonable case to be made for reimbursement of the Legal Services Agency’s account in the case of a successful claim against the Crown. Although it may be seen as a ‘money-go-round’ there is an issue about the perception of a ‘blow-out’ in legal aid even though there has been a legitimate claim made.

Waitangi Tribunal cases – the amount of legal aid money that is provided in this area affects the information the public receives about the burgeoning legal aid bill. All of these cases ought to be fully resourced through the Office of Treaty Settlements and the Crown Forestry Rental Trust so that the payments are not included in the Legal Service Agency’s accounts at all.

Family matters – There is no real need for such a significant increase in expenditure in this area. These are human relationships that need to be worked through in a respectful way and the thought of fighting each other especially when children are involved needs to be discouraged. Unfortunately some lawyers encourage the adversarial model and allow their legal expertise to be used as a weapon against the other party. Problem-solving should be the name of the game and therefore it might be better to consider a model that adopts the mediation approach used in employment relations cases before the court is involved.

This would also work for cases where grandparents seek to obtain guardianship in the face of a seriously dysfunctional parent using legal aid to fight the case. Using professional mediators and salaried lawyers with expertise in these matters could assist the parties to resolve the case in the best interests of the child.

Paying firms a bulk-funded sum for a number of cases would resolve the swings and roundabouts of simple and complex cases.

Domestic Violence – we fully support the availability of free legal advice and support. This should be available at the court. Anecdotally we hear examples of women turning up on a Friday afternoon and filling out the forms with no advice or support.
Having someone on-site or within easy calling distance of the court would assist cases that need urgent attention. There needs to be serious thought given to having expert salaried lawyers operating out of community law centres - and/or private sector lawyers contracted into community law centres (as they do in the UK e.g. Croyden Family Justice Centre).

Legal Aid in Employment Disputes - Prior to the Employment Contracts Act, employees had to belong to a union in order to access the personal grievance provisions contained in national awards.

One of the consequences of the change in the law was the loss of national awards (which excluded managers over the salary bar), the introduction of voluntary union membership and the opening up of personal grievances to cover all employees, regardless of management status and salary.

Work that previously been limited to unions and employee associations was opened up to the legal profession generally as well as ‘employment consultants’ – often former union employees. This has had an impact on the legal aid bill in the civil arena. This accessibility to legal aid has masked one of the enormous costs imposed on the SME sector by the Employment Contracts Act and that is the inequality in the PG arena that is imposed by a legally aided employee vs a non-legally aided SME owner.

The cost of union membership includes what is in essence an insurance fee against the cost of representation for a personal grievance. Contrasting the $50 contribution required by legal aid and the $300-$500 per annum fee paid to a union seems to put non-union members at a significant financial advantage over union members and it may be that a higher rate of contribution should be required for these cases.

ENDS

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