Judgment: Criminal Bar Association of NZ v Attorney-General
COURT OF APPEAL OF NEW ZEALAND
CRIMINAL BAR ASSOCIATION OF NEW ZEALAND v ATTORNEY-GENERAL
(CA606/2012)  NZCA X
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.