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.

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.

However, as the International Bar Association’s Human Rights Institute has said, those who have been carrying out their duties as lawyers and judges are now at grave risk of reprisal and are facing a material risk of persecution. Moreover, as the Hon Michael Kirby AC CMG said recently:

The international community bears a legal responsibility to ensure the safe passage of refugees fleeing Afghanistan and that none are forcibly returned as failed asylum seekers, in adherence to the principle of non-refoulment.

A little further north, Russia is preparing to hold its parliamentary elections this month. However, new laws which have banned ‘extremist’ organisations from running for office, and related measures, have seen opposition leader Alexei Navalny and many others, detained, fined or placed under investigation, renewing fears that fundamental freedoms are being curtailed dramatically ahead of voters going to the polls. In 2016, the ruling United Russian Party (Yedinaya Rossiya) won 54.2% of the vote. Poll predictions suggest the ruling party faces a material risk of defeat at the ballot box, something which would affect the operation of the presidency in a practical sense but wouldn’t threaten the President’s leadership.

As we widen our lens to look at events on a global basis, a pattern of legal action can be seen against governments, and even companies, on climate change obligations. In Notre Affaire à Tous v France (No 1904967, 968, 972, 976/4-1) the Administrative Court in Paris found the French Government was liable under French and EU law for not taking enough action to meet its commitments to reduce greenhouse gas emissions. In a similar vein, in Neubauer, et al v Germany (BvR 2656/18/1), Germany’s Federal Constitutional Court found that Government measures to combat climate change were insufficient to protect future generations and that emission reduction targets were set too far into the future and would not meet the objections laid down in the Paris agreement. And, in Australia, in Sharma and Ors v Minister for the Environment [2021] (FCA 560) eight Australian children sought a declaration that there was a duty of care on the Government not to cause them harm relating from coal extraction and carbon emissions. The Court found that a duty of care of that kind did exist and that the potential for harm to the children was a mandatory consideration when determining whether to approve projects such as the extension of a coal mine in New South Wales.

If those cases are seen to be breaking new ground, then a recent decision of the Hague District Court can be seen as something of a seismic shift. In Milieudefensie et al v Royal Dutch Shell PLC (C/09/571932/HA ZA19/379), it was found that corporates such as Shell have human rights responsibilities and that Shell, specifically, must reduce its carbon dioxide emissions by 45% from 2019 levels by 2030 to help ensure that global warming is limited to 1.5 degrees centigrade.

The inclusion of the private sector in international moves to reduce global warming is reflected also in our new financial sector (Climate Related Disclosure and Other Matters) Amendment Bill, which will amend the Financial Market’s Conduct Act 2013 and other legislation by requiring the making of climate related disclosures by FMC reporting entities. The Bill is based on the idea that financial markets will help contribute to the economic transformation needed to shift investment away from emission intensive activities towards those that are more resilient and produce lower emissions.

International and global issues such as these can be challenging to contemplate when we are facing ongoing alert level restrictions. We are truly disappointed that we are not able to bring you our Annual Conference this month or to enjoy your company at the Auckland Silks dinner and at regional Bar Association gatherings that were scheduled for this month and early next. But, as much as our world is inconvenienced at the moment, we might spare a thought for those across Latin America and the Caribbean where more than one million people have died from Covid-19. We are fortunate to have a society and an economy that can cope with a lockdown and a health system that can manage and respond to a pandemic.

Despite the lockdown, we do hope you have been enjoying our free online seminar series. Our most recent webinar – on opening addresses and leading evidence in criminal trials – enjoyed a significant turnout and presentations from Marie Dyhrberg QC, Julie-Anne Kincade QC, Gareth Kayes and Iswari Jayanandan have received overwhelming feedback. Moreover, our thanks to those of you who joined us at our AGM on 10 September. My report for the AGM on the Bar Association’s activities over the last year has been distributed by email and can be found on our website, alongside our financial reports for the year.

Moreover, at the AGM I was delighted to announce the election, each for a two-year term, of our new Council members. Their profiles are provided over the next few pages. The contribution made by our Council members is extraordinary. I extend a warm welcome to Maria Dew QC, our President Elect, Victoria Casey QC and Genevieve Haszard. And we bid a fond farewell to our wonderful past President, Kate Davenport QC, to David O’Neill who has been the Association’s Treasurer since 2015 and has managed the Association’s financial affairs so capably during such difficult times, and to Esther Watt, who’s abilities and wisdom have made a real difference. We also farewell Quentin Duff, who has helped us with criminal matters and understanding te ao Māori concerns - he has been a calm and reflective voice. We welcome back, warmly, to the Council Simon Foote QC, Anne Toohey, Philip Cornegé, Felix Geiringer, Taryn Gudmanz, James Rapley QC, Richard McGuire, Tiho Mijatov and Setareh Stienstra. I look forward to being able to farewell and welcome our Council members more appropriately, in person, at our conference on 5 and 6 November. Until then, my very best wishes to you all.

Noho ora mai

*Paul Radich QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email him via president@nzbar.org.nz