Many legal practitioners in the country are peeved over a proposed legislation, which they say will infringe on the rights of individuals using Legal Aid to choose a lawyer to represent their cases in courts.
Justice Minister Simon Power introduced to Parliament on August 4, 2010 the Legal Services Bill, seeking to amend major portions of the existing statute relating to Legal Aid granted to defendants to appoint a lawyer of their choice to represent them in Court of Law.
But according to some members of the legal profession, the Government is already using its administrative powers to implement portions of the Bill even before it is enforced as Law. This reportedly became effective on November 29, 2010.
Contrary to popular belief, Legal Aid is only a “loan” extended to the defendants and must be repaid as per the set criteria.
Lawyers, solicitors and barristers say that the new legislation will retain the payment provision but take away the right of the individual to choose his or her own legal counsel.
The impact of the Legal Services Bill, now with the Parliament Select Committee, is just being understood and the coming weeks could see a deluge of petitions and protests in the public domain.
Auckland based Barrister & Solicitor Tudor Clee said the biggest issue that the proposed Legislation would throw up would be removal of the right of people to have their ‘Preferred Counsel.’
Legal Aid repayable
“Legal Aid is a Government assistance programme to help people pay for a lawyer. For many people, their Legal Aid grant is a loan, much like a student loan, which they must pay back in full. If someone has a property, they may even have to put a caveat over it to get Legal Aid,” he told Indian Newslink.
According to him, prior to November 2010, a person qualifying for Legal Aid and charged with an offence carrying up to 10 years imprisonment could choose the lawyer to assist them.
“Now the Government will appoint a lawyer regardless of any preference or previous relationship you may have had (with another lawyer),” he said.
Mr Clee said that prior to the changes more than 70% of people using Legal Aid chose their own lawyer to represent them.
This reflects the value that the users of the system place on their Rights, he said.
“Now people are prevented from requesting a lawyer who speaks their language or is knowledgeable of their culture.
“Many people appear frequently in the court because of long-term problems such as mental health or alcohol. They previously requested the lawyers who knew them and their history well to present the case better than others.
“Even these people will now be forced to use a different lawyer every time they come to court,” Mr Clee said.
Human Rights breached
He said the changes breached Human Rights, notwithstanding the fact that New Zealand is a party to the United Nations International Covenant on Civil and Political Rights (ICCPR).
Article 14(3)(d) states that a person charged may “defend himself (or herself) in person or through legal assistance of his (or her) own choosing.”
“New Zealand used the ICCPR as the basis of our own Bill of Rights,” Mr Clee said.
“The right of choice ensures a relationship of trust and confidence between you and your lawyer. When the Government, which is also prosecuting you, forces you to use a certain lawyer it raises questions around conflict of interest,” he said, and asked, “If a person does not trust their lawyer, how can they trust the system?”
Quality suffers
The roll-on effect of the changes could mean that Legal Aid recipients get a lower quality of service at a higher cost to the taxpayer.
“People are being assigned to lawyers in whom they do not have confidence. They are still able to change that lawyer but will be given another ‘lucky dip.’
“Every time a case is delayed because the client is not confident in their lawyer or is uncomfortable giving all the information to them, it drains the resources of the court,” Mr Clee said.
He is taking a case pro bono to the Auckland High Court on February 17.
He said three Legal Aid users were fighting for their right to choose (a lawyer) under the ICCPR and Bill of Rights.
“They include a man who was required to put a caveat on his house to even get Legal Aid and he has to pay back the full amount of the grant. In spite of this, he was prevented from using a Tongan-speaking lawyer,” Mr Clee said.
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The Legal Services Bill 2010
Key Provisions
- A new Quality Assurance Framework; legal aid lawyers must demonstrate competency to a Selection Committee according to objective criteria. The Performance Review Committee will assess their performance and impose sanctions where appropriate. Lawyers must re-apply every three years.
- Flexibility to the Secretary for Justice to establish different legal services and deliver services in different ways
- Eligibility criteria streamlined for low-cost criminal cases in the summary jurisdiction. These cases will involve a shorter application form, and will not be subject to repayment, unless they exceed a set amount
- Secretary for Justice empowered to contract Community Law Centres to provide legal services
- Replacing the Legal Aid Review Panel with the Legal Aid Tribunal to consider applications for review of legal aid applications
Main Provisions
Legal Services Commissioner
The Bill establishes the position of Legal Services Commissioner, who must be an existing employee (or become an employee) of the Justice Ministry. The Commissioner must, except in respect of some functions, act under the direction of the Justice Minister and the Secretary for Justice
Independent Functions
- Grant legal aid in accordance with this Act and the regulations
- Determine legal aid repayments where legal aid is granted
- Assign a provider of legal aid services or specified legal services to an aided person in relation to salaried lawyers, decide allocation of cases among salaried lawyers, oversee the conduct of legal proceedings conducted by salaried lawyers and manage the performance of salaried lawyers
- Carry out any other function conferred by the Minister, the Secretary, or other enactment
- Disestablishing the Legal Services Agency and shifting responsibility for the administration of legal aid to the Secretary for Justice
- Establishing the Legal Services Commissioner (an Independent Statutory Officer), responsible for granting legal aid, ensuring the independence of lawyers in the Public Defence Service
