New Zealand Law Society president Rotorua lawyer Jonathan Temm discusses the impact of changes made to legal aid:
Rotorua has about 126 lawyers, providing a wide range of legal services. Like the rest of New Zealand, the majority (about 77 per cent nationally) will not carry out legal aid work.
Calls for strike action or work to rule by some legal aid lawyers therefore directly affect only a small number, but the wider issue is important to all New Zealanders.
The Law Society does not advocate such action. Strikes or working to rule are not an available lawful option because of the individual legal aid contracts that apply. Legal aid providers are not simply contractors to the Legal Services Agency. Like all lawyers they also have obligations to the courts and their clients.
Some of the protest has focused on plans to expand the Public Defence Service. The Law Society has never attacked the integrity of the lawyers who work for the PDS. We support all our members wherever they choose to practice, and that includes the PDS. However, we do not agree that the expansion will achieve the desired result.
Considering the recent changes to legal aid, the Law Society is concerned at the lack of consultation, removal of access to legal advice for many people, continued failure to address the real drivers increasing the public cost of legal aid, and plans to expand coverage by the PDS. These changes impinge on some fundamental rights and are certainly not driven by lawyers' self-interest.
While we are concerned, the Law Society totally accepts the government's need to control public expenditure. We do not challenge the Government's right to make policy in pursuing its agenda.
However, policy-making is dependent on understanding the needs and environment of the recipients, and policy advice needs inputs. The latest changes to the legal aid system were put together without any detailed consultation with the legal profession. We have since worked hard to make our concern at this known, and have now been assured that consultation will be sought on future proposals and options.
Major changes in 2007 increased the number of people eligible for legal aid from 750,000 to 1.2 million. The Society questioned this then, pointing out what would happen with legal aid costs. The 61 per cent cost increase in the past three years is not surprising.
We have consistently said that drivers of rising criminal legal aid costs are increased eligibility, inclusion of Waitangi Tribunal funding, prosecutorial overcharging, high crime rates and relentless statutory change. Lawyers' remuneration for legal aid work has not been a driver of cost. Remuneration rates have not changed in real terms since 1998.
Criminal legal aid costs have been restrained effectively for over a decade. In over 90 per cent of criminal legal aid cases, the cost to the taxpayer is less than $650/case. Even when adding the remaining 10 per cent of high cost and high profile cases, the average cost of a criminal legal aid case is $1348 (Legal Services Agency 2010 report).
The eligibility threshold for criminal legal aid is being reduced to an income of $22,000 a year for a single person or $50,000 for a married couple with two children. This is exceedingly low and effectively shuts many people out of getting legal aid for legal advice. Legal aid will become more of an exclusive service, available only to people earning $100 a week less than the minimum wage.
The Society believes that legal aid should be indexed to the average national wage (about $48,000) plus assets and liabilities: anyone earning below the average wage qualifies for legal aid on assessment; if earning above, they could be assessed according to income and also the charges faced - assistance for a charge such as murder, but not for minor offences. The ultimate aim is the right for every citizen in New Zealand to have adequate legal representation and the right of access to justice without ability to pay being the sole determinant.
As a small, locally-focused, high quality legal service in competition with private legal aid providers, the value of the PDS was endorsed by two independent reviews, judicial and anecdotal feedback.
However, if this is expanded nationwide, the future for quality public legal services becomes uncertain.
A 2007 Legal Services Agency review concluded that the cost of running a law firm was $74/hour. An expanded national PDS - which would effectively be the largest national law firm in New Zealand with 450 staff in 11 centres - would incur all the costs private law firms do.
The Government's other major legal agency, Crown Law, with 198 staff, had salary and wage costs of $18.6 million in the year to 30 June, 2010 - an average cost of $94,056/person before adding in building rental, risk management/insurance, operating expenses, travel and other support costs.
Law is an expensive business.
