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

 

PARLIAMENT TODAY:

  • Govt Probed Over Health & Safety
  • Questions and Answers 28-05-15
  • Week in Parliament 22-05-15
  • Saturday Sitting
  • House Rises At Midnight
  • Telco Levy Bill Passes
  • Telco Levy Bill Completes First Reading
  • Social Housing Bill Passes Under Urgency

  • Labour Party: McCully Doesn’t Deny Bribe In Saudi Sheep Scandal

    “In Parliament today I asked Murray McCully directly: Why is he the first Minister in history to back a multi-million dollar facilitation arrangement which in other jurisdictions is called a bribe? says Labour’s Export Growth and Trade spokesperson ... More>>

    ALSO:

    Welfare: Closure Of Relationships Aotearoa

    The Aotearoa New Zealand Association of Social Workers (ANZASW) Chief Executive Lucy Sandford-Reed is concerned about the closure of a national service which provides a wide range of services to rural and urban communities throughout New Zealand. More>>

    ALSO:

    TPPA: University Of Auckland Warns Of Negative TPP Impact

    The University of Auckland May 20, 2015 University of Auckland Warns of Negative TPP Impact With the Trans Pacific Partnership (TPP) negotiation drawing to a close, the University of Auckland has expressed serious concerns about its potential implications. ... More>>

    NZ Flag: Flag Referendum Gets Hit Hard In New Poll

    The latest Campbell Live text poll confirms it is time for the Prime Minister to listen to the public and shelve his flag referendum, says the New Zealand First Leader Rt Hon Winston Peters. More>>

    Gordon Campbell: The Government’s Belated Moves On Property Speculation

    Is it a property tax on capital gains or a capital gains tax on property? The Jesuitical distinctions in the government’s spin about its latest moves on property speculators are all about whether the government can claim that it jumped, or confess that it ... More>>

    Grant Robertson:
    Key Can’t Just Be Prime Minister For Parnell

    John Key must show New Zealanders in next week’s Budget that he is more than the Prime Minister for Parnell, and is also the Prime Minister for Pine Hill, Putararu and Palmerston North, Labour’s Finance spokesperson Grant Robertson says. In a ... More>>


    Labour Party: More Regional Jobs Go In Corrections Reshape

    News that 194 Corrections staff are to lose their jobs will have ramifications not only for them and their families but for the wider community, Labour’s Corrections spokesperson Kelvin Davis says. Prison units at Waikeria, Tongariro and Rimutaka ... More>>

    ALSO:

  • NZ First - Prison Job Losses to Send Money Offshore
  • TPPA: ‘Team Obama’ Regroups On Fast Track, Still Not Deliverable

    ‘After yesterday’s stinging and unexpected defeat for the Obama administration’s attempt to advance Fast Track legislation in the US Senate, Senate leaders have worked up a compromise they think will get them past this blockage’, according to Auckland ... More>>

    NZ Government: 5,500 More Doctors And Nurses In Our Hospitals

    Health Minister Jonathan Coleman says a record number of doctors and nurses are working in District Health Boards across the country. More>>

    Controller and Auditor General: Katherine Rich Conflict of Interest Decision

    We are writing to you about a matter that has been raised with us by members of the public. More>>

    ALSO:

    Budget 2015: Andrew Little On The 2015 Budget

    Speaking to the Chamber of Commerce, the Labour opposition leader attacked the government’s approach to economic issues facing New Zealand. He said they have been “more than reckless in their complacency” and “the next week’s budget will do nothing ... More>>

    Defence Force: NZDF Building Partner Capacity Mission Personnel In Iraq

    NZDF Building Partner Capacity Mission Personnel in Iraq The New Zealand Defence Force Building Partner Capacity training mission contingent is in place at Taji Military Complex in Iraq. The Chief of Defence Force Lieutenant General Tim Keating says the ... More>>

    PM Press Conference: ACC Levy Cuts Announced

    In a press conference this afternoon in Wellington, ACC Minister Nikki Kaye proposed $500 million worth of ACC levy cuts. More>>

    Quakes: New Process For Red Zone Crown Offers

    Canterbury Earthquake Recovery Minister Gerry Brownlee has announced a process to give everyone a say on the Crown offers to owners of vacant, commercial/industrial and uninsured properties in the Residential Red Zone. More>>

    ALSO:

    Get More From Scoop

     

    LATEST HEADLINES

     
     
     
     
     
     
     
     
     
    Politics
    Search Scoop  
     
     
    Powered by Vodafone
    NZ independent news