Adjustments to Legal Services Bill proposed

21 October 2010

Adjustments to Legal Services Bill proposed

The New Zealand Law Society agrees that there should be changes to the way the legal aid system is managed and administered and has proposed some amendments to the focus of legislation currently before Parliament.

In its submission on the Legal Services Bill, the Society says legal aid was central to a just and democratic society which was founded on the rule of law. The submission was made to Parliament’s justice and electoral select committee by Law Society President Jonathan Temm.

Mr Temm says the Law Society has focused on four key matters which it believes will help ensure New Zealand has a legal aid system which enables vulnerable members of society to have access to justice through legal advice and representation.

He says that while the new Bill provides for the granting of legal aid for proceedings before the Waitangi Tribunal, there is a strong case for separately funding these.

“It is important to stress that the Law Society supports the allocation of public money to fund the costs faced by claimants in Waitangi Tribunal proceedings. This is a matter of law and was decided over two decades ago in the landmark Court of Appeal decision New Zealand Maori Council v Attorney-General,” he says.

“Waitangi Tribunal claims and proceedings are a unique and distinct class of proceedings when compared against other judicial proceedings for which legal aid is available. The Tribunal is more akin to a commission of inquiry and we urge the Government to consult with specialist lawyers working in the area to consider adequate and appropriate funding options.”

The Law Society also believes that increasing legal aid rates is vital for helping ensure delivery of high quality legal aid services. The report by Dame Margaret Bazley which was behind the current legislation recommended a review of remuneration rates, Mr Temm says.

“It is clear that a number of high quality, experienced lawyers have pulled out of the legal aid system because of the way it is remunerated. Our recommendation is that the comprehensive review of legal aid remuneration which was carried out in 2007 should be implemented at the same time as the new quality framework which is being developed.”

The Law Society submission includes a request that it will be given the opportunity to comment on draft regulations. Mr Temm says that while the Bill makes fundamental changes to the structure of the current legal aid system, regulations will provide the framework and the detail of new processes and procedures that will enable the new system to work efficiently and effectively.

“The content and detail of the regulations will be crucial in ensuring that the new legal aid system is effective, fair, and efficient,” he says. “Often policies and regulations are developed by officials not involved in the provision of legal services and this can mean that some policies are not feasible in practice or are unnecessarily burdensome. Consulting the Law Society and legal profession leads to a system that is more practical.”

Mr Temm says the fourth key matter concerns the standing of the new Legal Services Commissioner role. He says the current Bill makes the Commissioner subject to direction by both the Minister of Justice and the Secretary of Justice.

“It is a well-established principle of the rule of law that the Executive government should not be intervening in the judicial system by determining which individuals are to have access to the Courts in practical terms,” he says. “There is also the potential for a conflict of interest, as the Crown is frequently a party to proceedings where legal aid may be granted.”

Mr Temm says the New Zealand Law Society believes the Legal Services Commissioner should be statutorily independent, similar to the Legal Complaints Review Officer.

The NZLS 37-page submission also contains proposals and suggestions on redrafting some provisions, with the objective being enhancement of the Bill’s practical application and workability.