Book Reviews | Gordon Campbell | News Flashes | Scoop Features | Scoop Video | Strange & Bizarre | Search

 


Opinion - A Band-aid for Legal Aid

News that the Government is to centralise legal aid and provide bulk funding along with a Public Defender’s Office is a band-aid solution. John Howard writes.

Recently Justice Minister Phil Goff has said he wants to proceed with proposals to centralise the legal aid system while Minister of Courts, Matt Robson, is raising concerns that not all people requiring legal assistance may have their needs met.

Our adversarial system of justice is arranged around having two equally matched sides able to present their respective cases with skill and in full.

That can be very costly, so it will come as no surprise that last year, New Zealand taxpayers spent around $100 million on legal aid.

But aren't the legal expenses of the commercial sector tax deductible? - i.e. also a burden on the taxpayer when a private company decides to enter into litigation or has an award of damages made against them.

Which government Minister is concerned about that? None, it seems. There appears to be this myopic vision that only people who use legal aid need to have their access to public funds tightened.
Let me provide an example of the many justice system problems I am aware of.

A member of a human rights organisation I belong to has been fighting a government department for the last two years.

He is on legal aid while the department also has access to the public purse. The major difference between the two is that his lawyer has to account for every single cent while the government department appears to have a bottomless money-pit with little accountability, transparency or oversight over how much public money it spends.

Last week, after two years of back and forth argument including the offer to mediate which the government department refused, the legal aid lawyer was ready to proceed to trial.

However, the day before the trial was to commence, the government department decided to file an application to have his claim struck out. In my view, waiting two years to do that was an abuse of the legal process and which has now caused a further application for funds to be made to the legal aid board. It has become a typical David and Goliath case.

There seems to be nothing in law which requires each party to enter into good faith mediation. In other words "we can tell you to get stuffed and we'll see you in court and we have the money and the time to do it without us being held personally accountable if we lose."

That is the real problem with our adversarial system of justice and no tinkering with legal aid will change that mindset. The French system allows judicial inquiries to be made to get to the truth of the matter thus short-circuiting the need for pro-longed court cases.

In New Zealand there seems to be a "hide behind a firewall mentality" which Minister's have allowed to continue - meaning, who's is going to hold us accountable.

Scoop recently reported on a case where Coast Health Care paid out a substantial amount of public money to an unjustifiably sacked nurse. That payment was negotiated at mediation and without the need to go to the employment tribunal or employment court.

In that respect it was a just decision. Fact is, however, Coast Health Care executives made a blunder, paid public money for it, but still have their jobs and without any inquiry, accountability or oversight. They appear free to make the same mistakes again. Does nobody worry about that?

If their decisions had merit or a satisfactory decision was not reached the case could have gone on to the Employment Court but the sacked nurse would have needed to apply for legal aid. Would it have been granted? - we'll never know.

And another case I am aware of involving the Nursing Council, a statutory body, seems to be heading to court because of an alleged unfair and unjust decision.

There is a long-standing legal principle whereby any organisation acting under delegated statutory authority must exercise its powers in accordance with natural justice and procedural fairness. All too often that's not happening and this may be a very good reason why the courts are full and there is a blow-out in the legal aid budget.

And why is it that decisions of the Ombudsman are secret to either party? I am aware of a case where the Ombudsman allegedly wrote an essentially different decision to each party on the same matter.

If the legal aid rules are tightened further then the government and the courts can expect to see more and more people coming before the courts representing themselves. That's going to further waste court time and create serious problems of cost and delay to other parties.

Judges have a critical role in ensuring unrepresented parties get a fair hearing and they understand and accept the outcome of the case. However, in an adversarial system of justice there are limits on how far the judge can depart from the traditional detached role to assist an unrepresented person.

Where there is no legal representation, save in a case of a skilled person, the adversary system, whether or not it remains in theory, breaks down.

Perhaps it's time to follow the Australian proposals and remove tax deductability of legal fees and also charge the commercial sector, who tend to very litigious, so much per day to use the court system

After all, the commercial sector relies almost exclusively on user pays and they should have no objection paying their fair share for access to the courts.

I hope the government listens and will not simply carry on punishing the little Kiwi battler.

© Scoop Media

 
 
 
 
 
Top Scoops Headlines

 

Werewolf: Living With Rio’s Olympic Ruins

Mariana Cavalcanti Critics of the Olympic project can point a discernible pattern in the delivery of Olympics-related urban interventions: the belated but rushed inaugurations of faulty and/or unfinished infrastructures... More>>

Live Blog On Now: Open Source//Open Society Conference

The second annual Open Source Open Society Conference is a 2 day event taking place on 22-23 August 2016 at Michael Fowler Centre in Wellington… Scoop is hosting a live blog summarising the key points of this exciting conference. More>>

ALSO:

Buildup:

Gordon Campbell: On The Politicising Of The War On Drugs In Sport

It hasn’t been much fun at all to see how “war on drugs in sport” has become a proxy version of the Cold War, fixated on Russia. This weekend’s banning of the Russian long jumper Darya Klishina took that fixation to fresh extremes. More>>

ALSO:

Binoy Kampmark: Kevin Rudd’s Failed UN Secretary General Bid

Few sights are sadder in international diplomacy than seeing an aging figure desperate for honours. In a desperate effort to net them, he scurries around, cultivating, prodding, wishing to be noted. Finally, such an honour is netted, in all likelihood just to shut that overly keen individual up. More>>

Open Source / Open Society: The Scoop Foundation - An Open Model For NZ Media

Access to accurate, relevant and timely information is a crucial aspect of an open and transparent society. However, in our digital society information is in a state of flux with every aspect of its creation, delivery and consumption undergoing profound redefinition... More>>

Keeping Out The Vote: Gordon Campbell On The US Elections

I’ll focus here on just two ways that dis-enfranchisement is currently occurring in the US: (a) by the rigging of the boundary lines for voter districts and (b) by demanding elaborate photo IDs before people are allowed to cast their vote. More>>

Ramzy Baroud: Being Black Palestinian - Solidarity As A Welcome Pathology

It should come as no surprise that the loudest international solidarity that accompanied the continued spate of the killing of Black Americans comes from Palestine; that books have already been written and published by Palestinians about the plight of their Black brethren. In fact, that solidarity is mutual. More>>

ALSO:


Get More From Scoop

 
 
 
 
 
 
 
Top Scoops
Search Scoop  
 
 
Powered by Vodafone
NZ independent news