New Zealand’s Legal Aid system is on the brink of collapse

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Too many cases; too few lawyers and too low fees compound the problem

Venkat Raman
Auckland, November 20, 2021

New Zealand’s Legal Aid system is on the verge of collapse and already justice is not being served to thousands of people because of serious shortcomings, a Survey has found.

Legal Lawyers have lost interest in the system and poor people are suffering, and Maori and Pacifica, in general, are among the most vulnerable, it said.

The Colmar Brunton Survey, commissioned by the New Zealand Law Society has just published the Report that makes dim reading; worse, it speaks poorly of the rot to which the Legal Aid system has descended in this country.

New Zealand Law Society President Tiana Epati (NZLS Photo)

Justice delayed is justice denied

Poor people in need of Legal Aid are not likely to get it and the adage that justice delayed is justice denied will soon become true of New Zealand if the government does not act fast to address the endemic problem and set right the wrongs.

That is in essence the message and warning of the largest survey of lawyers ever undertaken in New Zealand. Called, ‘Access to Justice Research 2021,’ it said that Legal Aid is on life support and that thousands of people are struggling to get it, with potentially life-changing consequences when they don’t, and Covid-19 has greatly aggravated the problem.

About the Survey

Most people may not know it, Legal Aid is not cost-free- it is a ‘loan’ the repayment of which is obligatory on the part of the person/s seeking it.

About 3000 lawyers around the country participated in the and a majority of them said that they are no more interested in taking up Legal Aid cases.

New Zealand Law Society President Tiana Epati said that according to the Survey, almost 25% of the respondents intend to undertake fewer Legal Aid cases or stop it entirely within the next twelve months. There was a small number of Legal Aid lawyers available at the start of Covid and there are fewer.

There are fewer Legal Aid lawyers available now, compared to the pre-Covid period, she said.

“The Survey has revealed that Legal Aid lawyers worked for free around half the time they spent on their last Legal Aid file. Their Legal Aid remuneration has not increased in over a decade, while over the same period, CPI has increased by 18.3%. They have an hourly rate that is half that of Crown Prosecutors and independent counsel to assist the court. Legal Aid lawyers literally cannot do this work anymore. It is not viable,” she said.

(From Access to Justice Report 2021)

The miserable state of affairs

Ms Epati said that New Zealand’s Legal Aid system is collapsing and called on the government to address this immediately.

“Vulnerable people who cannot afford lawyers and seek Legal Aid, are not getting it because the number of lawyers undertaking Legal Aid has diminished. Legal Aid lawyers are unable to cope with demand, are too poorly paid to deal with the complex cases they have, so they quit the Legal Aid system. This has caused a crunch: too many cases, too few Legal Aid lawyers to deal with them due to unsustainable remuneration. Consequence? Ordinary people are accessing a system but not accessing justice,” she said.

The Survey said that more than 20,000 people were turned away from Legal Aid lawyers in the past 12 months.

Ms Epati cited a case study where a parent, unable to get Legal Aid to seek custody of his children, had given up trying to represent himself.

“The true outcomes of scenarios like that for New Zealand are dire. When ordinary people cannot get the Legal Aid to which they are entitled, and give up their rights, they become even more vulnerable. The impact on their lives can be hugely damaging,” she said.

Rising backlogs and adjournments

Stating that Covid-19 has exacerbated the problem, Ms Epati said that about 47,000 court events have been adjourned in this latest lockdown, building up a backlog of more than 3000 jury trials, roughly 1000 of which are in the Auckland area.

“Last year, a smaller backlog was met largely through the goodwill of Legal Aid lawyers. More trials were held in 2020 than ever before. This year, faced with an even bigger backlog and an exhausted, over-stretched Legal Aid pool, the goodwill of lawyers has been drained. It is very unclear how this mountain of work will be tackled, or by whom,” she said.

(From Access to Justice Report 2021)

The plight of Maori and Pacifica Peoples

According to the Report, the strain on Maori and Pasifika Legal Aid lawyers is immense.

Lawyers working in Maori and Te Tiriti o Waitangi Law carry the heaviest Legal Aid burden and spend nearly twice as much time providing free legal services (on average) as most lawyers. Legal Aid lawyers who identify as Pacific peoples are also more likely to have done Legal Aid work in the last 12 months and are working excessive hours; 54 hours a week compared with 50 hours for Legal Aid lawyers and 47 for all lawyers, the Report said.

Ms Epati said that the solution was in front of the government but the window of opportunity was closing fast because senior Legal Aid lawyers were calling it a day.

“It is these senior Legal Aid lawyers who must help fix the mountain of court backlogs. If they go, the backlog remains,” she said and recommended a three-pronged approach to solve the persistent problem. These include (1) A substantial, overall increase in Legal Aid remuneration (2) More funding for junior lawyers to support Legal Aid seniors. At the moment, there is no funding for this, compounding the problem because there are no junior lawyers to succeed seniors who are leaving (3) Dealing with the administrative burden of becoming a Legal Aid provider and running a file. Many lawyers refer to this as a stand-alone barrier.

“Therefore, as the Budget is being set for the next financial year, I call on the government to act quickly,” Ms Epati said.

About the Access to Justice Survey

The ‘Access to Justice’ Survey was the largest of its kind in which about 3000 lawyers from all over New Zealand participated.

The New Zealand Law Society commissioned Colmar Brunton to undertake this independent research on Legal Aid, free and low-cost legal services.

Legal Aid is a term used to describe the ability of all people to access the courts to resolve their disputes. It includes being able to get the right help when people have a legal problem, understanding what is happening and what the outcome might be, and having the chance to be heard. Access to Justice is fundamental in a democratic society. It supports a system where everyone is subject to the law, treated fairly, and able to obtain justice when something goes wrong.

About Legal Aid

Legal Aid is government-funding to help people who cannot afford a lawyer.

It is intended to ensure that everyone can access justice and is not denied this simply because they cannot afford a lawyer. Lawyers apply to become approved Legal Aid providers, and a majority of Legal Aid payments are ‘fixed fee,’ regardless of the work that it requires, the lawyer receives a set amount.

Whether a person is eligible for Legal Aid depends on the kind of legal assistance that they need. For family and civil Legal Aid, there is an income threshold, while for criminal Legal Aid, circumstances will be assessed at the time. People seeking Legal Aid must apply and the application must be approved to receive Legal Aid.

Legal Aid is a loan and will usually need to be repaid.

About the New Zealand Law Society

The New Zealand Law Society has a long history of advocating for and supporting Legal Aid.

Under the Lawyers and Conveyancers Act 2006, the Law Society is required to assist with and promote law reform to ensure the administration of justice and the rule of law. Access to justice is one of the most important components of this requirement and a sustainable Legal Aid system is essential. The Law Society also has an interest in ensuring the wellbeing of practitioners within the Legal Aid system.

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