27.8.12

Chur, Justice Tipping.

The Right Hon. Justice Tipping has recently retired from the Supreme Court in New Zealand. Having served on the bench for 26 years, Tipping J recently made his final address to the Supreme Court, and in it he touched on the point of legal aid in Aotearoa (link here for the full speech).

The legal aid system is an attempt to ensure government-funded legal representation for those who cannot afford to pay for their own lawyer for criminal, family, civil, and Waitangi Tribunal hearings. It has been repeatedly changed as governments struggle to keep a lid on costs that have ballooned from $111 million in 2006-2007 to $169 million in 2010-2011. The Ministry of Justice took over administering legal aid from the Legal Services Agency in July last year. As part of the reforms, fixed fees were introduced for specific tasks in criminal cases, with hourly rates applying for only a limited number of hearings. This year, fixed-fee schedules were introduced for family court and ACC cases.

Legal aid provides a basis for a fair and just legal system. In order for everybody to be represented adequately and given equal rights within the system, it is crucial that we remember those who cannot afford the exorbitant prices that most lawyers charge and provide for them in the most practical way; legal representation. Tipping J acknowledges this and reminds us of the basic human rights we threaten when legal aid becomes inaccessible to those who need it most;


There is no doubt that there were some features of the legal aid system in New Zealand that needed the recent attention given to this subject. My concern is that the solution those genuine problems received resembled the use of a sledgehammer to crack a nut. The scope of legal aid and the rates of remuneration are now, according to the information I have received, at a level that seriously risks compromising the delivery of justice, at least in some fields. Is the Bill of Rights to be viewed simply as formulaic window-dressing? For example, s 24(d) gives everyone charged with an offence the right to adequate facilities to prepare a defence. By necessary extension that must encompass adequate facilities to prepare a plea in mitigation.


I question whether our current legal aid system is consistent with the observance of these fundamental rights. In similar vein s 25(h) gives convicted persons the right to appeal against conviction, sentence or both. At least at the level of indictable crime, where the appeal lies to the Court of Appeal, it is difficult to see how that right can effectively be exercised without legal representation. The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation. The irony is that the money saved by not granting legal aid is very often overtaken by corresponding, if not greater costs being incurred elsewhere. I refer to the extra work needed by the registry staff and the Judges themselves when an appellant is unrepresented. It is a false economy that we seem to be pursuing.


If legal aid is granted, counsel’s ethical duties to the Court should in most cases lead to the isolation of such points as can responsibly be argued. This results in a great deal of saving of time and cost in the processing, hearing and determination of appeals. If counsel do not perform their role responsibly, it should not be beyond the scope of the legal aid authorities to take appropriate action. In respect of legal aid and access to justice generally I notice that the Chief Justice of Canada has very recently expressed similar concerns at a meeting of the Canadian Bar Association. It seems to be an issue that is causing difficulties in most modern democracies. I suggest we should lead the way by reexamining how legal aid should be delivered. What we need is a proper recognition of the fundamental rights and values that are at stake. We can do this without sacrificing the need for efficiency and economy.


In an attempt to cut costs and trim debt, the Executive seems to have forgotten that in fact, the Judiciary is the third arm of government and that access to the courts and the administration of justice and an independent judiciary is paramount to a fully functioning government and country. Instead of trying to plaster over the leaky hole with a band aid, why don't we create a legal aid system that is accessible and effective, while addressing the deeper social issues that fuel the recent increase of costs - the highest ever level of inequality between rich and poor in NZ; the 3% drop of average household income in the last year; the economic and social disparity that correlates to increases in crime, lower education and health standards and higher levels of welfare spending?

It's time to stop blaming the recipients of these benefits for sponging off the system, time to stop trying to make short term repairs, and time to start taking responsibility for the paradigms we unconsciously function within in order to balance the scales and ensure a society in which everybody's rights are recognised.

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