Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 


Judgment: Criminal Bar Association of NZ v Attorney-General

[Judgment: Criminal_Bar_Association_v_AG.pdf]

COURT OF APPEAL OF NEW ZEALAND

MEDIA RELEASE

CRIMINAL BAR ASSOCIATION OF NEW ZEALAND v ATTORNEY-GENERAL

(CA606/2012) [2013] NZCA X

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

The Court has allowed in part an appeal by the Criminal Bar Association from a judgment of the High Court concerning the lawfulness of the Government’s criminal legal aid policy. Some background is necessary to explain the Court’s judgment.

In response to its concern over the rising cost of legal aid, the Government commissioned a review of the legal aid system. The outcome of that review was the passing of the Legal Services Act 2011. That Act disestablished the Legal Services Agency, and moved the task of granting and administering legal aid from the Agency into the Ministry of Justice. The Act gave the Secretary for Justice overall responsibility for administering legal aid. The Act established the office of Legal Services Commissioner within the Ministry, and gave the Commissioner responsibility for the grant of legal aid under the Act. The Act required the Commissioner to act independently when performing that function.

In March 2012 the Secretary for Justice introduced a new policy called the Criminal Fixed Fee and Complex Cases Policy and Procedures. This Policy fixes the fees lawyers are paid for providing particular legal services, regardless of how much time is involved. Only if amendment criteria set down in the Policy are met will more than the fixed fees be paid. When introducing the Policy the Government anticipated that the fixed fees would apply in 95% of criminal legal aid cases. Previously, lawyers had been paid at an hourly rate, up to a maximum number of hours.

The Criminal Bar Association represents lawyers practising criminal law. The Association applied to the High Court for judicial review of the Policy, alleging that it was unlawful in several respects. Justice Simon France dismissed the Association’s application, finding that there was nothing legally wrong with the Policy. The Association appealed that judgment.

The Court of Appeal’s judgment holds that the Policy is unlawful in two respects. The first is that the Policy was made by the Secretary. By the Policy the Secretary effectively dictates to the Commissioner in respect of the grant of legal aid for most criminal cases. That is unlawful because the Legal Services Act makes it clear that the grant of legal aid in individual cases is the function of the Commissioner, and one which the Commissioner is to exercise independently.

In this part of its judgment the Court emphasises the importance Parliament placed on the independent exercise of the Commissioner’s functions. The prosecution of crime is carried out by the Solicitor-General as an independent law officer of the Crown, to avoid any appearance of political decision making in relation to public prosecutions. Parliament considered it important that the granting of legal aid to those accused of crime be controlled by an independent person, as the Act provides. It is inappropriate that the Secretary dictate to the Commissioner how he should perform that independent function.

The Court also found the Policy is unlawful in that it unreasonably fetters or restricts the Commissioner’s discretion when exercising his independent functions under the Act. The Court’s view is that the criteria in the Policy are so unclear, inflexible and unachievable that they leave no room for the Commissioner to exercise discretion to depart from the fixed fees where the Commissioner considers they are inappropriate for the particular case.

The Court rejected the Association’s arguments that the Policy was unlawful in further respects. It held that cutting the cost of legal services was a lawful purpose of the Legal Services Act. It also held that the Secretary for Justice was entitled to delegate his functions under the Legal Services Act to a particular person who had also been appointed Commissioner.

Having found the Policy unlawful in two respects, the Court considered that, strictly, it did not need to decide three further challenges by the Association to the lawfulness of the Policy. However, the Court dealt with these for completeness, rejecting all three. It held that the Secretary, when developing the Policy, had properly taken into account defendants’ rights protected by the New Zealand Bill of Rights Act. Further, that the Policy was not an unreasonable one, in administrative law terms. Finally, it held that the Secretary correctly regarded himself as bound by a decision of Cabinet in terms of the development and implementation of the Policy.

ENDS

[Judgment: Criminal_Bar_Association_v_AG.pdf]

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Mana Māori: Kawenata Unites Kaupapa Māori Parties

The Māori Party and Mana Party have signed a historic agreement today to unite Māori politically.

Māori Party president Tukoroirangi Morgan said the kawenata or agreement was a huge step forward for Māori in the lead up to the general elections.

"Today is an important day for the Māori nation because today is when the country's only two kaupapa Māori political parties unite to work tactically together in the best interests of our people," says Mr Morgan. More>>

ALSO:

.

 
 

Immigration: Short Reprieve For Nine Indian Students

A temporary hold on deportations of nine Indian students is a step in the right direction but the Government urgently needs to implement safeguards to stop further injustices to more international students, the Green Party says. More>>

EARLIER:

Welfare: WINZ Breaching Privacy Laws With WINZ Vetting Rules

E tū, the union for security guards, says WINZ may be breaching privacy laws with its new screening process for people visiting WINZ offices. The vetting requires WINZ security guards to check photo ID and whether visitors to WINZ offices have an appointment.More>>

ALSO:

Turnbull Visit: Leaders’ Talks Cement Trade Relations, Science Agreement

Mr English met with Prime Minister Turnbull in Queenstown today to discuss common approaches to bilateral and international issues, including trade and science and innovation. Mr English also thanked Mr Turnbull for Australia’s offer of support for those fighting the fires on the Port Hills in Christchurch. More>>

ALSO:

Youth Guarantee: Upskilling Fund Used For Retraining

News that one in five of the people enrolling in Youth Guarantee already hold qualifications at the level they’re enrolling in highlights the failure of the scheme to reach the disengaged young people it was set up to assist, says Labour’s Education spokesperson Chris Hipkins. More>>

ALSO:

Port Hills Fire: Midday Update, Monday 20 February

• 9 homes destroyed
• 2 homes with partial damage. Damage includes things like cracked windows, heat damage.
• 3 properties with damage to other external structures e.g sheds or outbuildings More>>

ALSO:

Gordon Campbell: On What Trump May Mean For Us

So far not much effort has been put into tracing the possible implications for New Zealand of the stream of executive orders and tweets that have been pouring from the Oval Office. Unfortunately, we may not simply be drive-by rubberneckers at this car wreck for much longer. More>>

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news