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

Greek Riddles:
Gordon Campbell On The Recent Smackdown Over Greece

There had been a fortnight of fevered buildup. Yet here we are in the aftermath of the February 28 showdown between the new Syriza government in Greece and the European Union “troika” and… no-one seems entirely sure what happened. Did the asteroid miss Earth?

It seems to have. The EU still exists. Syriza is now claiming a victory of sorts. It doesn’t help that the only people who do appear to be sure (the Greeks buckled) are claiming the exact opposite to what the other group (the Greeks won!) are saying. Plus, there are bets either way e.g. Bloomberg News: “Its too early to say who caved in to whom.” More>>

 

PARLIAMENT TODAY:

Iraq: Ex-Hostage Says Government Not Putting NZers, Iraqis First

Harmeet Singh Sooden is travelling to Iraq in the coming weeks to work with Christian Peacemaker Teams (CPT) on a short-term assignment. More>>

ALSO:

Joint Statement: Australia-New Zealand Leaders’ Meeting

Prime Minister Key warmly welcomed Prime Minister Abbott and Mrs Abbott to New Zealand. The visit has enabled wide-ranging and substantive discussion that has underlined the strength, value, diversity and warmth of our trans-Tasman relationship. More>>

ALSO:

Press Conference: Peters To Stand In Northland By-Election

New Zealand First Leader Winston Peters has announced his intention to stand in the Northland by-election, citing his own links to the electorate and ongoing neglect of the region by central government. More>>

ALSO:

Gordon Campbell: On The Wage Hike For MPs (and Paul Robeson)

Hard to tell what is more infuriating. Is it the 5.3% increase on the already bloated salaries of MPs, or their pantomime of outrage at being gifted with such a wonderful back-dated bonanza? More>>

ALSO:

No Designers Or Visual Artists: Flag Panel Members Announced

The Government has appointed 12 New Zealanders as members of the Flag Consideration Panel which will engage with the public about a possible new New Zealand flag, Deputy Prime Minister Bill English says. More>>

ALSO:

Labour MP Stands Down From Portfolio: Comment From Carmel Sepuloni

The first I knew of my mother’s charges was when I was called by a reporter yesterday. I spoke to Andrew and we agreed there is a conflict of interest at the present time which means I will temporarily stand aside from the Social Development portfolio. It’s the right thing to do… . More>>

ALSO:

Gordon Campbell: On Whether NZ Troops Are The Least Of Islamic State’s Problems

Given that it has been politically packaged and sold as a training mission, the Iraq deployment announced yesterday by Prime Minister John Key seemed to be mysteriously short of actual trainers... The other wing of the argument is whether a troop deployment is (a) the only effective way and (b) the appropriate time to combat Islamic State. More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news