Thousands Suffer In Justice Squeeze: Legal Aid A Covid Response Crisis
The largest ever survey of lawyers on 'access to justice' in Aotearoa New Zealand shows the legal aid system is on life support. Thousands are struggling to get legal aid, with potential life changing consequences when they don't, and Covid-19 has greatly aggravated the problem.
Almost 3,000 lawyers responded to the Access to Justice Survey, which was carried out by Colmar Brunton on behalf of the New Zealand Law Society | Te Kāhui Ture o Aotearoa.
"Aotearoa New Zealand’s legal aid system is collapsing," said President of the New Zealand Law Society Tiana Epati. "I’m calling on Government to address this immediately."
"Vulnerable people who cannot afford lawyers and seek legal aid, are not getting it because the number of lawyers undertaking legal aid has diminished. Legal aid lawyers are unable to cope with demand, are too poorly paid to deal with the complex cases they have, so they quit the legal aid system."
"This has caused a crunch: too many cases, too few legal aid lawyers to deal with them due to unsustainable remuneration. Consequence? Ordinary people are accessing a system but not accessing justice."
The New Zealand Law Society's research showed that in the past 12 months over 20,000 people were turned away from legal aid lawyers.
Ms Epati cited a case study where a parent, unable to get legal aid to seek custody of his children, had given up trying to represent himself.
"The true outcomes of scenarios like that for Aotearoa New Zealand are dire. When ordinary people cannot get the legal aid they're entitled to, and give up on their rights, they become even more vulnerable. Down the line, the impact on their lives can be hugely damaging," she said.
"To make matters worse, not only is legal aid on the brink but Covid-19 has exposed and deeply exacerbated the problem. Almost 47,000 court events have been adjourned in this latest lockdown, building up a backlog of more than 3,000 jury trials, roughly 1000 of which are in the Auckland area."
"Last year, a smaller backlog was met largely through the goodwill of legal aid lawyers, who stepped up. More trials were held in 2020 than ever before."
"This year, faced with an even bigger backlog and an exhausted, over-stretched legal aid pool, the goodwill of lawyers has been drained dry. It is very unclear how this mountain of work will be tackled, or by whom."
Ms Epati went onto explain that there were too few legal aid lawyers available at the start of Covid, and now there are fewer.
"Our survey showed almost a quarter of current legal aid lawyers intend to do less - or stop - legal aid work entirely within 12 months." she said. "It revealed that legal aid lawyers worked for free around half the time they spent on their last legal aid file. Their legal aid remuneration hasn’t increased in over a decade, while over the same period, CPI has increased by 18.3%. They have an hourly rate which is half that of Crown Prosecutors and independent counsel to assist the court. Legal aid lawyers literally can’t to do this work anymore. It’s not viable."
"The strain on Māori and Pasifika legal aid lawyers is particularly immense. Lawyers working in Māori and Te Tiriti o Waitangi Law carry the heaviest legal aid burden and spend nearly twice as much time providing free legal services (on average) as most lawyers. Legal aid lawyers who identify as Pacific peoples are also more likely to have done legal aid work in the last 12 months and are working excessive hours; 54 hours a week compared with 50 hours for legal aid lawyers and 47 for all lawyers."
Ms Epati said that the solution was in front of Government, but the window of opportunity was closing fast, because senior legal aid lawyers were calling it a day.
"It’s these senior legal aid lawyers who must help fix the mountain of court backlogs we have. If they go, the backlog remains," she said. "A three-spoke attack by Government to solve the problem is needed. Firstly, there needs to be a substantial, overall increase in legal aid remuneration. Secondly, there needs to be more funding for junior lawyers to support legal aid seniors. At the moment, there’s no funding for this, compounding the problem because there are no junior lawyers to succeed seniors who are leaving."
"Finally, the administrative burden of becoming a legal aid provider and running a file must be dealt with. Many lawyers refer to this as a stand-alone barrier."
"Therefore, as the Budget is being set for the next financial year, I call on Government to act quickly."
About the survey
The Law Society commissioned Colmar Brunton to undertake independent research on legal aid, free, and low-cost legal services. The report is the result of a survey that went to all lawyers in New Zealand. The survey results are attached to this media release.
Access to Justice
This term is used to describe the ability of all people to access the courts to resolve their disputes. It includes being able to get the right help when you have a legal problem, understanding what is happening and what the outcome might be, and having the chance to be heard. Access to justice is fundamental in a democratic society. It supports a system where everyone is subject to the law, treated fairly, and able to obtain justice when something goes wrong.
Legal Aid is government-funding to help people who cannot afford a lawyer. It is intended to ensure that everyone can access justice, and is not denied this simply because they cannot afford a lawyer. Lawyers apply to become approved legal aid providers, and the majority of legal aid payments are ‘fixed fee’ - regardless of the work that it requires, the lawyer receives a set amount. Whether you are eligible for legal aid depends on the kind of legal assistance that you need. For family and civil legal aid, there is an income threshold, while for criminal legal aid your circumstances will be assessed at the time. You must apply and be approved to receive legal aid. Legal aid is a loan, and will usually need to be repaid.
Role of the Law Society
The Law Society has a long history of advocating for and supporting legal aid. Under the Lawyers and Conveyancers Act 2006, the Law Society is required to assist with and promote law reform, for the purpose of ensuring the administration of justice and the rule of law. Access to justice is one of the most important components of this, and a sustainable legal aid system is essential. The Law Society also has an interest in ensuring the wellbeing of practitioners within the legal aid system.