Neil Sands
The legal aid system is already in crisis and any funding cuts would risk “mayhem” in the courts by forcing up the number of self-represented litigants, the profession’s leaders have warned.
Responding to a Ministry of Justice review of legal aid that proposes overhauling aspects of the system, representative legal bodies said bold action was needed to ensure legal aid was fair, properly funded, and accessible to all who need it.
“The proposals on the table do not go far enough to address the scale of the crisis,” The Law Association of New Zealand (TLANZ) president Tony Herring said.
“When people in poverty cannot access legal advice or representation, the justice system itself is falling short.”
New Zealand Law Society (NZLS) president Frazer Barton said funding cuts would further reduce access to legal aid, meaning people would choose to self-represent in court proceedings.
“Technically, everyone is entitled to self-represent. The reality is that it creates mayhem in the courts, and a case will take two to three to four to five times as long and be very stressful for everyone else concerned.”
Taxpayer savings
TLANZ vice-president Julie-Anne Kincade KC agreed with the assessment.
“Lawyers spend a lot of time with clients, explaining procedure and how things work, expediting the procedure with them. For example, discussing whether they plead guilty in a criminal case or not.
“All of those things would have to play out in the arena of courtroom with a self-represented accused. When people are self-represented, they will ask court staff for legal advice because of the fact they don’t understand procedures and so on, which is inappropriate. It then ends up in the courtroom, with the judge having to go through matters,” Kincade said.
“Overall, any time that can be saved in the courtroom, ends up saving the taxpayer money, and that’s where legal aid lawyers come in – it’s cheaper to pay a legal aid lawyer to spend that time with a client going through procedural matters… than having to do it in the courtroom.”
A cost-benefit analysis from Deloitte Access Economics, commissioned by NZLS, found that every $1 spent on legal aid in New Zealand generated $2.06 in economic returns for the community.
“Investment in legal aid is a responsible financial decision, resulting in economic benefits and efficiencies for the justice sector, as well as wider government and societal outcomes,” NZLS said in a submission to the review.
The Deloitte analysis echoes the findings of similar studies overseas, including Australia.
Passionate advocates
TLANZ’s submission to the review outlined five broad areas of concern:
- Eligibility thresholds to access legal aid are too low and not being reviewed. Current income limits exclude many people living below the poverty line, yet the government has ruled out expanding them at this stage.
- Plans to increase the amount of legal aid that clients must repay will further deter vulnerable applicants. Legal aid debt already discourages access, especially among Māori, Pacific peoples and disabled communities.
- The number of lawyers doing legal aid work is shrinking rapidly. Low pay and excessive bureaucracy are driving lawyers out of the system, leaving clients without representation and causing delays across the courts.
- Reform must reflect Te Tiriti o Waitangi. Māori and Pacific people are overrepresented in the justice system and face systemic barriers to legal support.
- There is no plan to rebuild the provider base in family and civil law. While the Government has paused eligibility improvements due to workforce shortages, it has not outlined how those shortages will be addressed.
Kincade said lawyers involved in legal aid were passionate about the benefits of the system and its ability to provide access to justice.
“Everybody should have the right to legal representation… sometimes it’s [to provide] a voice to the smaller person — the person in an employment dispute, perhaps with a company, or even a family case, where one party might be stronger than the other, both economically and in eloquence.
“These people need lawyers to help put forward their side of the situation, so that whoever the fact finder is — the judge or the jury — can properly evaluate where justice lies at the end, having listened to all the parties.”
The TLANZ submission can be read here.
I was a legal aid provider for many years, and watched as the process became more bureaucratic and whittled away. It isnt an easy concept to sell to the general public, but ask judges if they want self represented litigants because of inability to get legal aid. I think most would prefer not to. The cost to the court system of large numbers of self represented parties needs to be examined and the potential for miscarriages of justice are a major component. I cannot see either of the 2 main parties doing anything to change, as it is not a vote catcher.