No justice here: changes to Legal Aid system
Changes to the legal aid system will contribute to the severe hardship many people are already facing.
This government is committed to further entrenching the underclass in New Zealand through benefit cuts, work testing and housing cuts coupled with the building of new prisons. Changes to the legal aid system will contribute to the severe hardship many people are already facing.
The proposed changes have been slightly scaled back, and the government likes to say that they are ‘moderate’. They are not moderate: they represent the continued erosion of the fundamental right to legal representation. Anyone who has faced prosecution by the state knows full well the resources available to the state. An individual who is defending themselves against criminal charges is already facing a serious uphill battle given the ‘long arm of the law’.
Criminal legal aid is the highest spending area and is steadily increasing, yet only a small proportion of claims are granted for people facing less than six months’ prison.
The proposed changes for legal aid include the following, and in particular the Legal Assistance (Sustainability) Bill aims to restrain the growth in the number of people receiving legal aid by:
- repealing the current requirement to adjust eligibility amounts in line with upward movement of the Consumer Price Index, so effectively freezing the income threshold and steadily reducing the number of persons eligible over time (estimated in the Regulatory Impact Report at 11,600 over the next four−to−five years);
- tightening the means and merits tests; this means even personal clothing, household items and tools of trade will be included as part of someone’s assets as a test of eligibility; really scraping the ‘bottom of the barrel’ to determine if people are eligible, and effectively leaving them with nothing in order to defend a charge.
- introducing user charges in part to discourage applicants for assistance in civil cases from proceeding with litigation; and
- imposing interest charges on outstanding repayments.(1) The Law Society notes that people involved in the justice system are often seeking to resolve a problem, and that the creation of a legal aid debt is the creation of a yet another problem largely for people who cannot afford it.
- removes the discretion of the Legal Services Commissioner to grant legal aid to someone even if they are not eligible. (2) 'According to the Ministry of Justice’s Regulatory Impact Statement, approximately 2,700 cases would be ineligible for legal aid following this amendment and that the rationale for making this change is because “criminal [legal aid] growth needs to be addressed”. We take issue with the removal of eligibility for legal aid under this rationale, because an increase in legal aid is more a symptom of the social struggles of the country than it is a problem in and of itself,' says Rethinking Crime and Punishment
- the expansion of fixed fees for particular stages of a criminal prosecution. This means that a lawyer can only get a certain amount of money for any particular part of a case. Lawyer Kent Arnott said, "It’s simply unrealistic, the time frames for both family and criminal cases. It doesn't take into account, especially in family court, how much behind-the-scenes work goes on. They allocate a set number of hours and say that's it, where with a private client you can invoice them for the hours you spend on the case."(3)
The effects of these changes
The inability of people to afford lawyers may actually increase prison numbers, increase the likelihood of miscarriages of justice and put pressure on the higher courts with applications to sort out matters that have not been properly resolved in the lower courts by reason of defendants not being adequately represented.
The imposition of interest charges will be an intolerable burden on those who genuinely cannot pay. They will be even less able to pay their debt as it rises due to interest penalties.
The Bill will disproportionately affect Māori as a large percentage of those additional persons likely to be forced to represent themselves in person will be Māori. (HRC)
Introducing user charges, raising the financial thresholds and increasing repayments risk perpetuating the disadvantages women already face in their access to justice. Women who require legal interventions (particularly in family matters) often have low incomes/few assets and have to fund childcare. (HRC)
Justice Isn’t Blind
The justice system in New Zealand isn’t fair, it isn’t equitable, and it isn’t just. Rather, it is the concentration of the racist and sexist discrimination that abounds in the rest of our society. Changes to legal aid will further exacerbate the struggle of many, many people who are faced with criminal prosecution or family court. Almost all of the submissions to the Select Committee voiced strong opposition to this Bill. It flies in the face not only of basic human rights guarantees, but of general common sense. It is motivated entirely by a desire to reduce the state’s financial role in providing access to justice, and it is shameful.
The Select Committee Report is due 2 November.
This report is comprised of significant extracts from:
(1) Human Rights Commission. Submission to the Select Committee
(2) Rethinking Crime and Punishment. Submission to the Select Committee. http://www.parliament.nz/NR/rdonlyres/165591FB-AE0B-42A2-85EE-6485D4F108D4/209492/50SCJE_EVI_00DBHOH_BILL10831_1_A207330_RethinkingC.pdf
(3) Lawyers shun legal aid cases. Malborough Express. http://www.stuff.co.nz/marlborough-express/news/7833825/Lawyers-shun-legal-aid-cases