Neil Sands
Planned industrial action by duty lawyers next week has split opinion within the legal profession, with some saying it is a long overdue response to woeful pay and conditions, while others question its timing, given the government’s ongoing review of legal aid.
The action has been widely described as a strike, although organiser Dennis Ansley says it is voluntary and involves only duty lawyers who choose to make themselves unavailable for the week. There will be no picket lines to deter lawyers who are not participating.
Nevertheless, Ansley described such collective action as unprecedented for lawyers in New Zealand, although barristers in the United Kingdom went on strike over legal aid funding in 2022 (pictured above).
“I think it’s the first time in New Zealand that we’ve done it,” the Auckland-based barrister said. “Lawyers are traditionally very conservative, so, it’s very hard to get a lot of support, but I do know the support in Auckland is very high.
“So we’re going to try our best to really get a message to the to the government, and particularly to [Justice Minister] Paul Goldsmith, that we’re serious about this.
“We just feel like we’ve been taken for granted and not given the recognition that we deserve, because our role is vital. I mean, without duty lawyers, the courts would just grind to a halt. They couldn’t operate.”
In addition to Auckland, some duty lawyers in Christchurch and Gisborne/Hawke’s Bay are also expected to make themselves unavailable.
Duty lawyers operate on the coal face of the criminal justice system, providing free legal advice to people who have been charged with an offence and are making their first court appearance but don’t have their own lawyer.
“We get verbally abused every day. Some colleagues have been badly physically abused as well,” Ansley said.
“The government says they value what we do but they’re not backing that with any action to give us better recognition and a more reasonable rate of pay.”
They’re like volunteers: AWLU
Since 1996, pay rates for duty lawyers have increased only once – in 2023, when they went from $88 to $103 an hour on weekdays and $108 to $126 on weekends, which Ansley says does not even cover inflation over the past 30 years.
He said that was equivalent to legal aid PAL 1 funding, the lowest of legal aid’s four payment tiers, leaving duty lawyers struggling to cover costs such as paying staff, office rents/mortgage, power, etc.
“One of my colleagues did a calculation and found she was lucky to get around about the minimum wage ($23.50 an hour) once expenses were taken into account,” he said.
“So what’s the incentive to be a duty lawyer these days, when you can charge a much higher rate as private counsel?”
Ansley said Goldsmith became “evasive” when pressed for action on the issue, prompting next week’s industrial action.
The Aotearoa Legal Workers’ Union (ALWU) said duty lawyers were among the worst paid members of the legal profession and the industrial action was a “reasonable step” to pressure the government for fair compensation.
“Duty lawyer work is becoming volunteer work, with remuneration barely covering the costs of legal practice,” ALWU co-Presidents Toni Wharehoka and Nathan Regal said in a statement.
“It is unsurprising that fewer and fewer lawyers are stepping in to do this work, leading to the present shortage of duty lawyers around the country. This is not only unfair to duty lawyers but threatens access to justice for everybody.”
Timing ‘premature’
The Criminal Bar Association said duty lawyers’ treatment by successive government had made their work “unsustainable or even unsafe”, while also emphasising: “This action is being taken by individual duty lawyers as an individual choice.”
“We stand with the duty lawyers for a New Zealand where everyone can access justice, no matter what their income,” CBA President Anna Cresswell said.
The Law Association of New Zealand (TLANZ) Vice-President Julie-Anne Kincade KC said there was no doubt questions remained about the adequacy of duty lawyer conditions and remuneration, despite the 2023 pay rise.
But she said a review of the duty lawyer scheme had been incorporated into a review of legal aid discussion paper available here – which has been finalised and is still awaiting a response from Goldsmith.
In addition, Kincade said she was part of a working group established by Legal Services Commissioner Tracey Baguley looking at conditions for duty lawyers.
Kincade said she was unclear about the specific aims of the industrial action.
“Whilst we await the Legal Aid review from the ministry, I just think that any industrial action is premature,” she told LawNews. “If and when there is industrial action, it would be much more effective if there’s universal support for it.
“It’s not the fact of industrial action at all. It’s the timing of it,” she added.
Kincade said one option for duty lawyers was to uncouple their remuneration from the legal aid PAL system, so they received a separate pay rate, as seen with youth advocates and the Alcohol and Other Drug Treatment Court.
She said it would be helpful if Goldsmith could provide a timeframe for responding to the legal aid review.
The Ministry of Justice provided a statement on Baguley’s behalf in which she recognised “the important role duty lawyers play in ensuring access to justice for people appearing in court without representation”.
“The ministry’s priority is to maintain continuity of service for court users during this period [of industrial action] and are actively working through options to ensure there is limited disruption, if any,” she said.
I’ve read the discussion document referred to by Ms Kincade KC: while it refers to expanding the role of duty lawyers, it only refers to reviewing remuneration in a broader context. I read into that that they want more bang for their limited buck from duty lawyers but do not recommend a commensurate increase in their remuneration.
I first provided duty solicitor services in 1992 and carried on for about 15 years, and was a legal aid provider in criminal and civil for about 20, although I only do limited criminal work now. When I started, the workload was often heavy, the pay rate was very low, particularly in the provincial court where I worked for my first two years, where I was often the only duty lawyer, seeing 20 to 30 clients at a shift. These problems are perennial.
I have seen these discussion documents and other reviews come and go, but the remuneration continues to lag behind inflation, and the gap between legal aid rates and Crown rates ever-widens.
In my view, if duty lawyers have resolved to withdraw their services as a form of industrial action, I’m in full support of it, because the problem of low pay for demanding work by duty lawyers has been perennial and will not be solved until it comes to a head (like it did in England in 2022, see https://www.citystgeorges.ac.uk/news-and-events/news/2022/07/barristers-on-strike-why-criminal-lawyers-are-walking-out-and-what-they-really-get-paid).
Politicians rank legal aid as a very low priority. I note that in England recently, the Lord Chancellor was successfully reviewed after having lowballed recommendations from a review, see The KING (on the application of the LAW SOCIETY OF ENGLAND AND WALES) v The Lord Chancellor [2024] EWHC 155.
As long as the industrial action is managed to ensure that people in urgent need of legal services appearing in criminal courts are provided for, I’m in full support of this step.