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Legal Services Amendment Bill, Third Reading

Hon. Mark Burton
Legal Services Amendment Bill, Third Reading

The Legal Services Amendment Act 2006 introduces long overdue reforms meaning many more New Zealanders on lower incomes will be able to afford legal representation for civil, family and criminal matters


I move that the Legal Services Amendment Bill (No. 2) be read a third time.

During the Committee of the Whole, a possible technical issue was raised. Chris Finlayson identified some references to the Law Practitioners Act 1982 in the Bill which did not take account of the Lawyers and Conveyancers Act 2006 which received royal assent on 20 March.

However, that Act does not commence until a date is set by Order-in-Council. I anticipate that commencement to be at least 18 months from now. The references in the Legal Services Act 2000 to the Law Practitioners Act 1982, will be amended at a later date to coincide with the commencement of the Lawyers and Conveyancers Act 2006.

This Bill demonstrates the Government's commitment to ensuring that an inability to afford a lawyer is not a barrier to accessing justice.

The Bill introduces changes that will update the financial eligibility criteria for legal aid - criteria that have not been reviewed since 1987. These reforms are important, as access to justice is fundamental to the rule of law and, therefore, the integrity of our justice system.

Under regulations to be made once the Bill is passed, the pool of people eligible for legal aid will increase from 765,000 to 1.2 million.

At the same time, the Bill introduces a mechanism whereby financial eligibility thresholds will be regularly updated to ensure that they keep pace with increases in the cost of living.

The Bill makes it easier for people to know whether they are financially eligible for legal aid, by simplifying the income and capital criteria. A number of improvements have also been made to the merits tests for both criminal and civil legal aid.

The merits test changes provide greater guidance to both applicants for legal aid and decision-makers as to whether a particular matter qualifies for aid. These are significant improvements which will enhance the transparency and consistency of legal aid decision-making.

The provision of state-funded legal aid involves a careful balance between ensuring access to justice and the cost-effective operation of the scheme.

It is for this reason that, for a number of years, the legal aid scheme has required the repayment of the costs of legal aid, from those who are able to do so. Under these reforms, a greater proportion of aided persons will repay some or all of the costs of legal aid.

The Bill introduces a more transparent repayment regime, whereby aided persons are better able to assess the potential costs - to them personally - of legal aid.

This will ensure that appropriate financial incentives operate with regard to the use of legal aid.

Recovering legal aid costs also expands the pool of money available for other legal aid applicants. The Bill contains a range of measures designed to improve the Legal Services Agency's ability to recover legal aid debt.

The Agency is now able to:
· require a person to commence, or recommence, payment of a legal aid debt. For example, if the Agency considers that a person's financial position has improved to a level which allows repayment; and
· use incentives to encourage the repayment of debt, such as, the ability to charge interest on debt if a person defaults.

Entitlement to legal aid is an important benefit, which significantly more New Zealanders will be entitled to access under these reforms.

It is therefore important that the Agency receives good quality information on which to determine a person's eligibility for legal aid.

A number of improvements have been made in this regard. For example, an aided person or his or her lawyer must advise the Agency of any increase in financial circumstances that could affect the aided person's eligibility for legal aid.

This obligation has been further clarified by Justice and Electoral Committee. The Bill now makes it clear that the obligation to inform the Agency is not prevented by legal professional privilege.

Overall, the Bill introduces greater transparency in the form of simplified financial thresholds and clarified merits criteria. The cost-effective administration of this expanded legal aid scheme is supported by a new repayments regime and improved Agency debt management tools.

The regular updating of the new financial eligibility thresholds will safeguard access to justice, both now and into the future.

Accordingly I commend the Bill to the House.


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