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Boost to legal aid not enough to ensure access to justice

Labour, Greens and ACT supported the Legal Services Amendment Bill at its first reading, which removes the $50 user charge and 5% interest charged on legal aid debts that was added by the National Government in 2014.

ACT backed the bill, saying it would increase access to justice, however they also agreed with National that the bill in its current form lacked details beyond the fee & interest removal. National opposed the bill, saying the removal may be ineffective while encouraging people to not pay their debts and thus increasing the cost of the program.

Chief Justice Dame Helen Winkelmann recently described NZ’s legal aid system as “unbelievably inadequate” and that it will “collapse if we don’t do anything about it”.

A recent regulatory impact statement warned interest was pushing legal aid recipients into poverty as they often have other government debts or court-ordered deductions. The statement also predicted that if nothing were done, a single person living in poverty would not qualify for legal aid by 2024, because the threshold adjustment has not kept up with inflation. Budget 2022 allocated $148 million to higher rates to attract more legal aid lawyers, and increased the threshold by 16.5% for 2023, rising to 20.3% for 2025. The threshold hasn’t been adjusted since 2018; much of this increase is merely keeping pace with projected inflation.

Necessary but insufficient

Frazer Barton, New Zealand Law Society President says it is “only a small starting point” and “our legal aid system needs substantially more investment”, saying a 2021 survey showed “three-quarters of legal aid lawyers… had to turn away people seeking legal assistance.”

Former Attorney-General Chris Finlayson says court fees have gotten too high in the first place, adding to the problem of severe delays. “Things are so bad in the District Court that the civil justice system has almost collapsed. Radical reform in the District Court is required, and I was heartened to see some sensible recommendations in the [recent Rules Committee] report about ways in which that could be achieved.”

There are increasing delays in criminal courts too. In 2019 the average wait for a jury trial was 425 days, double what it was twenty years ago. In 2009 National’s Justice spokeswoman Kate Wilkinson called the courts system “something of a disaster”; in 2019 Justice Minister Andrew Little told the United Nations Human Rights Council in Geneva “It’s fair to say that our justice system is broken”. Little spoke of reforming that system, but the situation has only worsened. Waiting times were considered to be massive after the first lockdown delayed 60,000 court appearances, causing 40% of all prisoners to be those awaiting trial. Since then the COVID response has postponed almost 150,000 court appearances – a worse disruption than during World War Two.

There are many contributing factors, such as tougher sentencing laws that were repealed by the Government in August, laws reducing the possibility of bail, and lack of prosecutor accountability over evidence disclosure. Prosecutor Chris Macklin, convenor of the Law Society’s criminal law committee, says “We also have to acknowledge we are facing severe resource constraints” within courts, police and Corrections.

Court delays are severely undermining justice, for instance causing victims to drop their cases or not report crimes in the first place, and causing defendants to plead guilty to spend less time in prison than if they were proven innocent. This has been happening with increasing frequency over the past decade.

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