May 18, 2021

TangataWhenua.com

Maori News & Indigenous Views

Legal Assistance (Sustainability) Amendment Bill – Rahui Katene

5 min read

There is a Chinese proverb which suggests “If we do not change our direction, we are likely to end up where we are headed.”

In this Legal Assistance Sustainability Bill, it is very clear that Government is dramatically changing the policy direction, but what is unclear, is exactly how this will change outcomes for the people that matter most every day New Zealanders.

There is no question that expenditure in the current legal aid system is not sustainable. As other speakers have noted, expenditure on legal aid rose from $111 million in 2006/07 to $172 million in 2009/10 a massive increase of 55 percent.

So ostensibly, this bill is designed to prevent such gross expenditure it is designed to save $138 million over four years.

But of course the fiscal costs are but one aspect to the debate around social justice and how it is experienced by all groups of New Zealanders.

This Bill limits eligibility for legal aid, reintroduces a user charge for civil and family legal aid, and enables interest to be charged on legal aid debts.

In doing so, it amends the Legal Services Act 2011 and other Acts to limit the number of legal aid grants and increase the amount legally aided people must pay.

As a general principle the Maori Party cannot support the move made in this Bill to apply the guillotine to certain aspects of eligibility without bearing in mind the advice of Dame Margaret Bazley and her observations around how legal aid is used to support the claims and cases of Maori and Pasefika peoples.

The Legal Service Agency report into Legal Aid Applications reveals a significant number of applications for Legal Aid were received from Maori a total of 37,337 and also from Pasefika peoples over 8000. When we compare this to the 40,000 odd applications from Pakeha it is evident that Maori and Pasefika families have seen much value in the support offered by Legal Aid.

An over-riding major concern for the Maori Party in coming to this Bill then, is that Maori and Pacific peoples feature strongly amongst those most likely to experience groups of problems that require legal assistance.

Arguably, if the legal aid system fails Maori, it fails altogether.

I am acutely aware of the wisdom gained in the report, Transforming the Legal Aid System, by Dame Margaret Bazley. In this report she identified that Maori and Pacific peoples appear to face barriers in accessing legal aid, in addition to the barriers faced by other eligible people.

She also recommended that the legal aid system needs to focus on the legal needs of Maori and Pacific peoples, and the barriers they face in accessing legal aid, with a view to enhancing their access over time.

And so I return to the proverb I referred to earlier – If we do not change our direction, we are likely to end up where we are headed.”

Is the direction that we seek - to reduce the numbers of Maori and Pasefika peoples? Or is it about the creation of a more fair and just legal system, which would respond equally well to the needs of Maori and Pasefika New Zealanders, as it does to any other group of New Zealanders.

If the latter direction is what we seek for ourselves, then surely instead of restricting eligibility criteria; limiting eligibility only to that referred to in accordance with the new Schedule 1A, we might be looking more broadly at what it is that is preventing Maori and Pasefika peoples from benefiting from due access to justice.

Specific concerns that we might then be able to turn our attention would be the barriers Maori and Pasefika peoples face, including a narrower merits test for family cases.

We might focus on the reintroduction of the $100 user charge for certain cases and whether this will, in practice, act as a barrier to all groups being able to access legal aid fairly.

As a former lawyer, I am of course aware that Maori are over-represented as legal aid users but I am just as aware that far too many of our whanau are limited by cost affordability issues.

And so the suggestion that would require parties to contribute to the cost of Lawyer for the Child services to encourage the early settlement of cases, while it might look good on paper will not be easily enacted in a way that makes sense for whanau.

Mr Speaker, it is somewhat ironic that in a bill supposedly promoting justice and therefore access to justice that there are measures being introduced which could actually be counter-productive.

And I refer to the introduction of compulsory repayment orders; and the proposal to charge interest on all debts which in effect will mean that many of our families will go further into debt.

The Maori Party recognises that there are some useful parts of the Bill which we support.

In particular we support the opportunity for certain recipients of grants to be exempt from the requirement to pay a user charge.

The exempted recipients are

  • certain claimants to the Waitangi Tribunal,
  • parties to proceedings under the Children, Young Persons, and Their Families Act 1989,
  • applicants for protection orders or orders relating to property of the Domestic Violence Act 1995,
  • patients or proposed patients in proceedings under the Mental Health (Compulsory Assessment and Treatment) Act 1992,
  • care recipients in proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003,
  • victims in respect of inquests or hearings before the New Zealand Parole Board, and
  • applicants for recognition as a refugee or a protected person

We support this list of exemptions of what might be more commonly referred to as cases involving vulnerable parties. The nature of cases referred to including mental health matters, care and protection of children and domestic violence are legal aid areas that Maori tend to be overly represented in and so we welcome the opportunity for their needs to be considered.

However, as a general focus, our commitment as the Maori Party is to support the human rights of all people by ensuring their access to justice and we can not be confident that this Bill achieves that.

We promote restorative justice systems where victims are empowered and where community involvement in the justice process is enhanced. We do not consider that the Legal Assistance (Sustainability) Bill enables these goals to be realised, and as such, at this first reading we will be voting against the Bill.

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