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Changes to Legal Aid in New Zealand (2011-09-30)
Following a change of Government in late 2008 the new Minister of Justice, the Honourable Simon Power, announced a fundamental review of the New Zealand legal aid system. The review was conducted by Dame Margaret Bazley, who had a very distinguished career in the New Zealand public service. While no doubt the initial focus was on the ever-increasing legal aid spend, there was also a consideration of the whole system and the quality of legal aid services provided.
Dame Margaret issued her final report in November 2009. It was damning in its condemnation of the level of legal services given by a significant proportion of providers. That report may be found at http://www.justice.govt.nz/policy/justice-system-improvements/publications/global-publications/t/transforming-the-legal-aid-system/ Essentially, the report identified unacceptable behaviour on the part of a significant number of providers. There was condemnation of the widespread abuse of the preferred lawyer system, the duty solicitor system in the criminal courts, the unnecessary inflation of hearing time in all courts, and unnecessary applications in the civil and family courts.
As a consequence, Dame Margaret set out a list of recommendations and changes that would significantly alter the legal aid landscape in New Zealand. The Government largely accepted those recommendations, including the reform of the system and its management.
As with other countries, the legal aid system is recognised as an essential part of our justice system, supporting access to justice for all. The package of reforms accepted by the Government will create a fairer system that is more efficient and delivers better quality services. Those changes focus on improving quality of service and advice for legal aid recipients and gaining greater value for money for the taxpayer. The fundamental changes have been encompassed in a new Legal Services Act, which may be found at http://www.legislation.govt.nz/act/public/2011/0004/latest/whole.html?search=ts_act_Legal+Services_resel&p=1#dlm3142726
Since 2000, legal aid has been administered by a Crown entity, the Legal Services Agency. The Minister’s immediate reaction to Dame Margaret’s report was to ascertain whether the existing board felt they were able to implement the recommended changes. All but two very recently appointed members, Ross Tanner and Jane Huria, tendered their resignation. I was appointed as the new chair, and a director with significant commercial background, John Spencer, was also appointed.
One of Dame Margaret’s primary recommendations was the bringing of the Legal Services Agency into the Ministry of Justice, with an independent statutory officer responsible for the grant of legal aid and the overseeing of the public defence service. Notwithstanding that, the new board and management has worked tirelessly since December 2009 to improve access, improve quality, to stamp out the behaviour identified by Dame Margaret, increase audits and to endeavour to ensure the budget was controlled and money spent wisely.
The other fundamental changes recommended by Dame Margaret included: the introduction of a new accreditation and performance management system for legal aid providers; the expansion of the public defence service to other urban centres; introduction of changes to improve the duty solicitor scheme; streamlining processes for assessing applications for low-cost criminal cases in the summary jurisdiction; more intense management of high-cost cases; developing national standards for community law centres; making changes to case assignment processes for some criminal cases; and introducing changes to improve the grant and administration of legal aid.
These matters are all identified in the new Act, and as well, under the regulations to the Act there will be a focus on more efficiently delivering legal aid by considering fixed fees, bulk funding and other mechanisms.
The changes will affect legally aided persons, legal aid providers and those working within the system. Legally aided persons will benefit by improvements made to the overall design of the legal aid system and the accreditation process. Legal aid providers should spend less time dealing with administrative matters and there will be greater opportunities for professional development.
Perhaps the most significant change is the establishment of a quality framework for legal aid providers. That framework will set benchmarks that competent providers should already be meeting. Unfortunately, many providers were not.
Under the new legislation, any lawyer wishing to be a legal aid provider will need to apply for approval. The system includes entry criteria that will lead to a review of recent files, but will also take into account a professional development plan for the lawyer, covering continuing legal education and, importantly, mentoring.
There will be selection committees put in place to consider applications that will measure such applications against the entry criteria. Those selection committees will also be responsible for the renewal of contracts and the movement of lawyers from junior through to senior categories. In criminal law, the present categories 1 to 4 (reflecting the seriousness of offending) will be replaced to mirror some other work being carried out in the criminal justice sector. Certainly, in the category dealing with serious crime, there will be sub-categories to ensure that only lawyers with experience in a given area are provided to persons needing legal aid services. A classic example is the need for a level of specialisation when dealing with serious crime. At the present time, the only categorisation of civil and family lawyers is between primary providers and secondary providers.
The new system will recognise the need to differentiate between junior, intermediate and senior lawyers. As part of the system there will be ongoing monitoring and auditing, not limited to financials. This system will look closely at the quality of service provided and the commitment to ongoing training and mentoring. There will be in place a review authority that will essentially hear appeals from those who are refused approval into the new system, or whose approval has been given on conditions.
The system in New Zealand has operated on the basis that if lawyers are approved by the Law Society as providers within a certain category, they will be granted a contract by the Legal Services Agency. It is apparent that there are far more legal aid providers than the system requires. It is likely in the future that the Government, through the Ministry of Justice, will contract with the numbers needed, not with everybody who wishes to be a provider. That is likely to lead to a significant decrease in the number of legal aid providers.
The second central plank of the reforms was the expansion of the public defender system. In May 2004 the public defence service in New Zealand began as a programme in the Auckland and Manukau courts. By agreement, and under pressure from the Law Society, they were assigned one in three legal aid cases after the preferred lawyer cases had been removed.
This was one of the most significant and innovatively laid developments in New Zealand, and championed the Legal Aid Services Agency. Despite criticism from the private bar, independent studies showed that the public defence service generated greater client satisfaction, had a guilty plea rate equivalent to the private profession, but delivered services 16 per cent cheaper. As well, there was widespread praise for the service from Judges in all courts and from court administrators. In particular it was noted that the quality and preparation public defence lawyers demonstrated was an improvement on much of the private bar, and there was admiration for the high quality mentoring and training opportunities given to staff within the service.
As a consequence, the current board has completed the rollout of the public defence service to all courts in the Auckland region. The Wellington public defence office has been opened, and Hamilton will open in July of this year. Plans were well advanced for expansion into Christchurch, but have been suspended because of the catastrophic earthquake of the 22nd of February. As well, the Minister has recently announced that the service will expand into Dunedin, Napier/Hastings and Tauranga. They will also take half of all legal aid assignments – a significant increase over the existing 33.3 per cent. While there will be challenges in recruiting competent lawyers, the early indications are that this expansion will further enhance the service to criminal clients and the public defence service itself.
I mentioned earlier the abuse of the preferred lawyer system noted by Dame Margaret Bazley. There was rorting of the duty solicitor system so that people were named as preferred lawyer, and other lawyers went to unscrupulous lengths to obtain inordinate amounts of work. Lawyers were frequently taking on more work than they could competently deal with, and the situation was exacerbated as many lawyers (referred to by Dame Margaret as “car boot lawyers”) were providing a very poor level of service.
As a consequence, following discussions and agreement with the Law Society, it was decided that a strict rotational policy would apply to all lower-end criminal cases in what we describe as category 1 and 2. That covers 92 per cent of all criminal cases with an average legal aid cost of $700. While there have been difficulties with the introduction of this system, it has worked and it has managed to remove many of the questionable practices that had grown up over the last ten years.
The board and senior management has put in place a far more robust complaints procedure and greatly enhanced the underperforming existing audit process. This has led to a number of high-profile legal aid providers either having their contracts cancelled or withdrawing voluntarily from those contracts. A number of practices identified in the audits have been referred for disciplinary procedures to the Law Society and to the police because of prima facie evidence of criminal behaviour.
One of the major issues confronting the new board was that the relationships with key stakeholders were in a very poor state. To that end, the board and new senior management have spent considerable time improving the relationship with the judiciary, the profession and our monitoring ministry, the Ministry of Justice.
The Legal Services Agency is also responsible for the funding and monitoring of community law centres in New Zealand. A lot of work has been done with those centres to improve the standard of service they provide, to agree a uniform contract and to put in place a national body representing all community law centres. This was yet another area where there needed to be an improvement of relations. While there is not complete agreement with all stakeholders, it is fair to say that the Agency now has an excellent relationship with all of those stakeholders which one will trust will continue in the future with the Ministry of Justice, who become responsible from the 1st of July.
There are many challenges ahead, but also many exciting opportunities, particularly in the area of improved services by providers for clients. That is, after all, the most important improvement that can be made provided it recognises the financial constraints of this decade.
Sir John Hansen