From the President Paul Radich QC*
Kia ora koutou. Legal aid was first available in New Zealand through the introduction of the Justices of the Peace Amendment Act 1912, which made aid available for criminal offences. The system was enhanced with the passage of the first Legal Aid Act in 1939 which authorised the New Zealand Law Society to “establish committees and panels of legal practitioners for the assistance of poor persons”. The Act enabled the profession itself to authorise the provision of legal aid to those members of the public who needed it. Applications were made through District Law Societies and, if accepted, the local Law Society would arrange for a lawyer to represent the applicant. In 1954, the authority to approve legal aid in criminal cases was given to the courts through the Offenders Legal Aid Act. Aid would be provided if, in the opinion of the court, “it is desirable in the interests of justice to do so”. The court would assign a lawyer, who was to be paid at the “going rate”, which was the same rate as that which would have been paid if the lawyer had been representing the prosecution. Through the Legal Aid Act 1969, responsibility for the administration of legal aid was transferred to a new Legal Aid Board and to District Legal Aid Committees. The Legal Services Acts of 1991, 2000 and 2011 extended the types of proceedings for which aid is available. But now, relative legal aid rates are at an all time low. The rates have increased by 37% since 1992 while, over that same period of time, inflation has seen a 94% increase in the costs of goods and services. Of the nearly 15,000 lawyers in New Zealand there are just, for example, 302 providing legal aid at the PAL4 level and there are just 164 civil legal aid providers. Numbers are higher in some areas, such as family and mental health, but there are gaping holes in coverage for people needing representation. As the New Zealand Bar Association’s 2018 Access to Justice Report – Āhei Ki Te Ture - highlighted, funding for legal aid in the criminal, family and civil areas has dropped materially. Similarly, income thresholds for those eligible to obtain aid and legal aid rates have been lowered and constraints have been introduced in the way that fees are calculated. The thresholds are such that there is a significant pocket of New Zealanders who do not qualify for legal aid but who cannot afford legal services.
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The Bar Association, through its Advocacy Committee and under the guidance of Maria Dew QC and Felix Geiringer, is focused on the issue. Increases in rates and thresholds, which had been hoped for as a part of the 2021 budget, did not come to pass. We are working for change in the next budget round - in the interests of those who need, but are not able to attain, access to justice through constraints in the legal aid scheme. The New Zealand Law Society’s access to justice survey, which will have reached you recently, will form a material plank in building the evidence that is needed to advocate for improvements. At the Bar Association, we are gathering a range of data from the Ministry, gathering information on the delivery of legal aid services in the marketplace and are meeting with senior Ministry officials, ahead of meetings with Ministers, in an endeavour, alongside the Law Society and with the support of other professional organisations, to make a real difference over the next year. We will bring you regular updates. As we grapple with this and a range of other local issues, such as the operation of the courts at alert levels 3 and 4, our attention has been drawn across the Indian Ocean and the Arabian Sea to the distressing events in Afghanistan where lawyers and judges face threats, not just to access to justice, but to their lives. As I said in my column in our 2 September Member Update, not all of us are in a position to help and many of us, who are watching the situation unfold, will be exhausted already by a feeling of helplessness. While no one should for a moment feel compelled to take steps that they are not in a position to, or are not ready to take, for those who can, helping just one person can make a real difference. Our webpage at nzbar.org.nz/ news/support-colleagues-afghanistan contains ideas on ways in which you can help. The International Bar Association’s Executive Director, Dr Mark Ellis, said this week: The Taliban has uttered assurances to the world including that ‘women’s rights will be respected’. However, the language is vague and it is likely that different provinces will institute their own interpretations of this and other guarantees. The gains achieved to date in Afghanistan towards the genuine expansion to a more inclusive society require continued adherence to international human rights principles, including those found in the International Covenant on Civil and Political Rights. These guarantees must not be allowed to simply disappear.
SEPTEMBER 2021
