New legal aid direction concerns New Zealand Law Society

13 April 2011

New legal aid direction concerns New Zealand Law Society

The New Zealand Law Society is concerned that the new legal aid policies announced by Justice Minister Simon Power could have a serious longer-term impact on access to legal advice and the quality of the representation provided.

Law Society President Jonathan Temm says while there is a valid concern over the increasing costs of legal aid, it is very worrying that the assumptions behind the forecast “savings” are untested.

“This is not a group of lawyers complaining that they are going to miss out on what some people mistakenly see as a comfortable way of getting rich at the taxpayer’s expense,” he says.

“It is very important to put the myths and stories aside and consider the impact of today’s announcement on the access all New Zealanders have to justice. The heart of the matter is really ensuring that everyone is able to receive high quality legal advice and representation at appropriate cost to the taxpayer if they could not normally afford it.”

Mr Temm says the decision to expand the Public Defence Service (PDS) to take up to half of all criminal legal aid work in main centres assumes that a bigger New Zealand-wide PDS will produce the same results which had come from a smaller tightly controlled and supervised Auckland-based scheme.

“The Law Society has always supported the PDS as a small, high-quality service in the years since it was established. However, a large, national PDS will be a totally different matter. Will the projections and assumptions made from the pilot trials be true on a national scale? Will experienced lawyers join the Service, or will it continue to draw most of its staff from recent law graduates and very junior lawyers?”

The issue of service quality which might arise from an expanded PDS could also be seen overseas, where tight fiscal restraints on similar services has resulted in an organisation staffed by inexperienced and overworked lawyers who are unable to provide effective representation.

Mr Temm says New Zealand needs a strong and independent private bar. There is a major problem with the planned removal of legal aid work from private lawyers, particularly with the announced reduction of eligibility. This has the potential to finally drive experienced practitioners away from legal aid work, again reducing the quality of legal aid. A mixed model depends on allowing the private bar a sufficient workload to ensure it could work economically and efficiently.

“Since the report on legal aid by Dame Margaret Bazley in November 2009, the Legal Services Agency has greatly stepped up the work it does in auditing the quality of legal aid delivered by independent criminal lawyers. This has shown that over 90% of those lawyers are providing competent, very good or excellent services,” he says.

“New Zealand has an effective, hard-working and competent criminal bar and it is unfortunate to think that the system which is being created now could make it uneconomic for many members to continue to provide legal aid services.”

Mr Temm says the Law Society is also very worried at what is still to come. The Minister has announced some fundamental changes to family law legal aid and has already made it clear that there will be even more far-reaching cuts to this in September.

“These changes to a family law system which is a world leader are going to deeply impact on our Family Court, family law practices and family law services in New Zealand,” he says.