New Zealand legal aid crisis erodes right to justice
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Opinion – Most lawyers readily agree that we will never be as popular as the doctors. We’re probably at the dentist level: no one really wants to see them – until they have a toothache.
Ditto with lawyers. Having to resolve a legal dispute without a lawyer can often be as problematic as providing dental care yourself.
Disputes over all kinds of things – boss bullying, abusive spouses, government overrun, child custody, what happens to people with dementia – can end up in court. Judges have important powers over us. They can take away freedom, property and children; they can order psychiatric treatment.
This is why the right to a fair trial is so fundamental – and why the legal aid system is so integral to that fairness. For example, the Bar Association’s recent survey of lawyers which revealed that the legal aid system is “on life support” is of great concern.
Balance the odds
Our justice system is largely based on the adversarial model, in which arguments are presented by those involved and the neutral judge (or judge and jury) makes a decision. This requires what is called “equality of arms” – essentially, equal access to lawyers.
Otherwise, there is an imbalance, which could lead to an unfair result with significant negative consequences. This is also why legal aid is of fundamental importance to a society that values fairness.
Governments, businesses and well-endowed organizations will invariably have lawyers. The company pays them in full if they work for public bodies. The company also partially pays for lawyers who represent commercial organizations, since their fees will be deductible from income and thus, will reduce the taxes paid.
It has long been recognized that society must provide lawyers for those who face state power in criminal proceedings. In 1912, the New Zealand Parliament set up a system of legal aid for defendants who did not have sufficient means. The starting point was to pay these lawyers at the same rate as prosecutors.
But many important decisions are also rendered by civil courts. A legal aid scheme for civil proceedings was introduced in 1939, aimed at the “poor”.
#LISTEN New Zealand’s legal aid system is in crisis according to some lawyers.
They say lawyers are dropping legal aid cases due to low pay and excessive, unpaid administration.
– Morning report (@NZMorningReport) 12 October 2021
During the revision and extension of the system in 1969, the objective was to better support the “small or medium-sized”. This proposal also proposed that legal aid lawyers be paid 85% of the rate they would otherwise have charged.
Lawyers abandon legal aid
Much has changed since then. If you currently benefit from legal aid, it is in the form of a loan – rarely amortized – bearing interest and carrying reserves on the assets.
But you are more likely not to get any legal help, as only people with very limited resources are eligible.
And, as the Law Society’s survey shows, even if you qualify, there’s a good chance you won’t be able to find a lawyer. The survey found that over 60 percent of lawyers have no interest in doing legal aid work. Many of those who wish to do so need to limit the number of cases they can handle.
This means that clients receiving legal aid are more likely to be turned away. The situation is also likely to get worse, as a quarter of those who want legal aid plan to do less in the future.
Red tape and low wages
Another problem identified by the lawyers interviewed is the level of bureaucracy they face. This can be traced back to a review of legal aid in 2009, which led to the current legislative framework under the 2011 Legal Services Act.
The review relied heavily on anecdotal evidence of misconduct by some lawyers. It has always been true that legally assisted expenses must be justified, but the current regime appears to be micromanaged.
The other major problem is that legal aid pay rates are low and have not changed for many years. It’s not just that lawyers can earn more – a lot more – if they avoid legal aid. This is because legal aid rates sometimes barely cover their costs.
When law academics ask law students why they want to become lawyers, the desire to help those in difficult circumstances is a common response. This may be especially true for students from more disadvantaged groups, including Maori, Pacific Islander, and refugee communities.
But these desires can only go so far if the work does not allow living.
Erosion of the right to justice
Of course, it’s easy to be cynical about lawyers who seek funding for lawyers. It comes back to the problem of the image. Compare that with healthcare professionals who demand better funded healthcare, including better pay for doctors and nurses. The audience is generally friendly.
But just as access to health is a good thing, so too is access to justice. These are two prerequisites for a decent society.
If we go back to the origins of legal aid, it was a recognition that turning to charity was not an appropriate response when the stakes were high. It was recognized that fair trials are a cornerstone of the justice system and that legal aid can contribute to equal access to justice for all.
This right to justice is recognized in the New Zealand Bill of Rights Act of 1990. But it fades over time, as fewer people can get legal aid and fewer lawyers are willing to do this work. .
The Law Society investigation suggests urgent action is needed to avoid a legal vacuum that should be unacceptable in modern New Zealand.