Preface from the chairperson
In the course of this review I have visited all of the major courts in New Zealand, all but one of the provincial courts, and many smaller courts. I have sat through proceedings and listened and watched how people are dealt with by the court and legal aid system. I have met with numerous judges, legal aid lawyers and many other lawyers, police and Crown prosecutors, and court registrars and their staff. I have also visited many community law centres and Citizens Advice Bureaux and met with others with an interest in the legal aid system. This has given me a unique opportunity to see firsthand how the legal aid system and the justice system operate.
The legal aid system is essential to ensuring that the justice system is accessible to all, not just to the wealthy. It is also essential to the operation of the justice system: its effect extends far beyond the individual who is represented by a legal aid lawyer. By enabling people to access lawyers, the legal aid system keeps the wheels of justice turning and helps to maintain trust and confidence in the justice system.
The legal aid system is facing some serious challenges, which I consider threaten its viability into the future. The major issue for the legal aid system is the increasing expenditure on legal aid services, which is primarily driven by the volumes and complexity of cases. Against that backdrop, are system-wide failings caused by problems such as
- an overly operational focus from the Legal Services Agency
- poor relationships between the New Zealand Law Society and the Legal Services Agency
- reluctance by the Legal Services Agency to exercise its statutory discretions, particularly in relation to lawyers
- an Act which seems to be, at times, overly protective of the market share of the lawyers who provide legal aid services
- inflexible procurement provisions in the Act, which prevent the Legal Services Agency from procuring services in the most efficient way possible
- variable quality legal aid services
- over-reliance on complaints as an indicator of lawyers who are failing to perform.
These combine in a way that means the Legal Services Agency is administering a system that is open to abuse by lawyers and defendants. There is a small but significant group of lawyers (and some defendants) who are abusing the system to the detriment of clients, the legal aid system, the courts, and the taxpayer. While there are very good lawyers in the legal aid system, there is also a small but significant proportion of very bad lawyers who are bringing themselves and their profession into disrepute. The behaviour I have been told about in the course of this review is simply appalling and I am surprised that the legal profession has allowed the situation to go on as long as it has. This situation cannot be allowed to continue. The damage that incompetent and unscrupulous lawyers can inflict on their unsuspecting clients – and the potential to destabilise the court system, with resulting wasted expenditure of public money – is simply too great.
A strong and united stance needs to be taken by the New Zealand Law Society as the regulator of lawyers and the Legal Services Agency as purchaser of legal aid services. I believe they should be given three years – no more – to fix the quality issues I have identified. Before the end of three years, I would like to see a further review of the quality of legal services (and legal aid services) that involves visits to the same courts that I visited. If the issues I have raised in this report have not been resolved by then, I would urge the government to institute an independent regulator of the legal profession and a regulatory regime that incorporates quality standards.
A sea change is needed in the legal aid system. It needs: a stronger direction; a customer focus; new machinery; a quality system for lawyers; and a more flexible approach to the procurement of services. It will be a challenge to bring about the changes needed whilst keeping the legal aid system running smoothly through the transition, but the results will be worthwhile. The changes should transform the legal aid system into a system of which the people of New Zealand can be proud. It will deliver access to justice for those who are most in need in a way that is appropriate to both their needs and those of the justice system. Taxpayers will be able to have confidence that legal aid expenditure goes on high quality legal services provided by competent lawyers who act with integrity, with minimal wastage in the system.
The legal aid system and the court system need to link better with social services. People entering the court system can be from the most deprived sections of society. Many
struggle with language and literacy barriers, which render the court system utterly incomprehensible. The current approach to the basic tenets of customer service in the courts is far too hit and miss. The system fails to capitalise on one of the most teachable moments in terms of improving the social deprivation of families and crime prevention with children and young persons. I strongly urge the government to assess its spending on social services and reprioritise it to extend existing social services into courts.
I am grateful to those people who generously made themselves available during the course of this review. Their comments and opinions have been enormously helpful. I am also grateful to those who made submissions in response to the discussion paper. The quality of submissions was very high and they were a valuable aid in the formation of my final conclusions. I also acknowledge the important contribution made by members of the Reference Group appointed to provide stakeholder perspectives. Finally, I would like to acknowledge the support I have received from the Ministry of Justice in the course of this review. That support has ranged from arranging and accompanying me to the many meetings I have attended, through to policy advice and assistance with the production of this report.
Dame Margaret Bazley, DNZM, Hon DLit
Chairperson, Legal Aid Review
27 November 2009
