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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.

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