Cross-Examination: The Efficacy of Legal Assistance Services – Reviewing our legal aid practices and institutions
Content Contributor, Pooja Upadhyay
From physical prison gates to figurative glass ceilings, barriers can take many forms. Even an unassuming piece of paper can obstruct citizens from performing their fundamental legal rights. Papers for Work and Income New Zealand (WINZ), employment, or Accident Compensation applications are often difficult to find, and contain legal terminology. Among other things, community law centres help citizens to overcome these literacy, language and accessibility barriers free of charge, thus playing an integral role in our legal system.
Policy makers recognise the important role of community law centres. In the Budget 2016, the government allocated roughly one million dollars for spending on community law centres each year, for the next four years.[1] This is the first time since 2008 that law centres have had funding certainty beyond the current financial year.[2] Auckland Community Law Centre’s Co-Manager and Administration Practice Leader Darryn Aitchison welcomes the allocation as a signal for stable funding. However, tight Ministry of Justice budgets since 2008 have seen funding levels remain static, which Mr Aitchison says has meant “the essential loss of spending power that has occurred over the last eight years”.[3]
[x_blockquote type="left"]“Since the global financial crisis, the reality for people in the community has gotten much tougher,” says Mr Aitchison.[4] The need for community law centres and other running costs have increased, but the funding has remained the same, making it harder for these law centres to run effectively.[5][/x_blockquote]
This produces a significant cost to the justice system in terms of efficiency and ability to produce just outcomes. From Mr Aitchison’s experience, the centre can only help clients up until a certain point. Due to limited funding, the centre has to subsequently withdraw services for its clients. As a result, “those people are left to fight the justice system on their own”.[6]
Although the Ministry of Justice website provides some guidance for citizens who choose to represent themselves, this is not enough to help lay men and women provide a sufficient defence in accordance with legal doctrine. Mr Aitchison posits that “effectively advocating for yourself by using the law is extremely complex, so whether it’s in a tribunal, or whether it’s in an investigation meeting… the power is often unequal”.[7] Where the opposing party is well-resourced, the layperson does not have an equal opportunity for justice. The benefits of an adversarial system in providing two strong competing arguments that bring about the truth are lost when one party cannot form sufficient opposition. This inequality in the courtroom can cost these citizens their property, liberty and livelihood- the implications of which exacerbate wider racial and wealth inequities.
Numerous sources of law provide authority for the observance of a citizen’s right to justice and the law. Arguably, on a theoretical level, citizens are entitled to have sufficient opportunities to provide a legal defence (through professional representation) because all citizens are subject to the law, without an option to escape or opt out. In statute, the right to natural justice is preserved in section 27 of the New Zealand Bill of Rights Act.[8] Additionally, in doctrine, the rule of law requires that all are equal before the law.[9]
The International Covenant of Civil and Political Rights (to which New Zealand is a party) includes the following provisions. Under the covenant, everyone is entitled:[10]
- to a fair hearing;
- to adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance;
- to be informed of this right;
- to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him if he cannot afford it;
- to examine a witness.
Read according to the letter of the law, these rights aren’t explicitly breached by self-representation. Nevertheless, self-representation breaches the spirit of these doctrines. A majority of these rights are empty without a qualified lawyer or well-resourced law centres. For example, the right to examine a witness is futile when citizens do not have the requisite skills to utilise the it.
As for the right to legal assistance, the New Zealand fulfils this obligation by providing legal aid. Between 2008-2015, government funding for civil legal aid dropped by 17.5%.[11] Whilst civil legal aid funding has decreased, the demand for help in this area appears high, with both the Otara and Auckland central centres being inundated with predominantly civil law issues. The Budget 2016 included a $17 million investment in increasing civil legal aid eligibility, perhaps in recognition of this demand.[12] Since July 2016, the maximum level of income a citizen may earn before being barred from claiming legal aid in civil disputes has increased by roughly $2000 for each family structure threshold, meaning fractionally more people are eligible for the services.[13]
Arguably, this increase sets the eligibility standard for a single individual (without a spouse or a dependant child) too high. This means those who earn an annual income greater than $22,846 are barred from seeking civil legal aid.[14] This figure becomes problematic, when people earn slightly more than this amount, yet still cannot afford a decent lawyer. Defending a relatively uncomplicated DUI (driving under the influence) charge through one appointment with an affordable lawyer and a hearing at the district council can amount to hundreds of dollars.[15] For more serious civil disputes, legal fees can amount to thousands of dollars, cutting off a significant percentage of the income of someone earning around $23-$30 thousand per year. However, deciding where the line should be drawn is challenging. It involves diverse economic and political considerations including current legislation, the national mean income, and discussion of the extent to which the right of representation applies. [x_pullquote type="left"]For example, if the rationale for the right is equal representation, do we have a right not just to any lawyer, but also to a good lawyer?[/x_pullquote]
As for legal aid in criminal cases, $54 million has been allocated this year. This figure is around two million dollars less than last year and significantly less than 2010, where roughly $75 million was allocated towards criminal legal aid.[16] However, the crime rate is ostensibly rising, implying the need for more criminals to be tried in front of the Crown, and thus more legal aid for criminal cases. This is especially important considering the resource disparity between the Crown and the defendant is likely to be significant (with the exception of white-collar crime defendants).[17] In sum, in light of the rights to justice and the effect of societal changes, criminal and civil legal aid eligibility must be up for constant review.
Beyond issues of funding and attention, the government should also address the adequacy of existing programmes. Community Legal Services Trust Manager Robyn Martin, said that after implementing policies like the Family Law Reform, the government needs, “to ensure that services such as the family legal advice service are fully functioning and that the public is aware of the services”.[18] Currently, instead of accessorising existing government programmes, the Otara based centre has to bear the brunt of providing these extra services.
A further issue according to Noel Sainsbury from the Criminal Bar Association is that lawyers are choosing other types of work over legal aid work.[19] Mr Aitchison asserted that increased funding would help mitigate this.[20] Ms Martin stated that the salaries within the community law centres have not increased for many years but has found it easy to recruit lawyers for the Otara centre. Nevertheless, an increase in salaries would go a long way to make up for the fact legal aid jobs do not provide the same glamour that some commercial law jobs do.
Ultimately, the government’s spending power is finite, and funding comes down to what the government of the day prioritises. Arguably, community law centres have been absent from the government agenda for far too long. Legal assistance services build a vital bridge between the law and society. In this sense, the provision of legal aid and community law centre services is integral to the health and efficacy of the New Zealand justice system.
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[1] The Treasury Summary of Initiatives In Budget 2016 (May 2016).[2] Interview with Darryn Aitchison, Senior Solicitor and Administration Practice Leader at Auckland Community Law Centre (Pooja Upadhyay, Auckland, 15 August 2016).[3] Above n 2.[4] Above n 2.[5] Above n 2.[6] Above n 2.[7] Above n 2.[8] New Zealand Bill of Rights Act 1990, s 27.[9] Duncan Webb, Katherine Sanders and Paul Scott The New Zealand Legal System: Structures and Processes (5th, Wellington, 2010) at 135.[10] International Covenant on Civil and Political Rights 999 UNTS 172 (entered into force 23 March 1976), art 14.[11] “Legal aid funding 2008 to 2015” (24 November 2015) New Zealand Law Society <www.lawsociety.org.nz/practice-resources/research-and-insight/practice-trends-and-statistics/legal-aid-funding-2008-to-2015>.[12] The Treasury, above n 1, at 12.[13] Legal Services Regulations 2011, s 5.[14] Section 5.[15] “Drink Driving/Excess Breath Alcohol Charge” Lawyer Help <www.lawyerhelp.co.nz/>.[16] The Treasury, above n 1, at 13.[17] Nicholas Jones “Surge in burglaries drives up NZ’s crime rate” (29 July 2016) Newstalk ZB <www.newstalkzb.co.nz/news/politics/surge-in-burglaries-drives-up-nzs-crime-rate/>.[18] Interview with Robyn Martin, Manager of Community Legal Services South Trust (Pooja Upadhyay, Auckland, 18 August 2016).[19] Max Towle, “Govt’s $96m legal aid boost questioned” (3 June 2016) Radio New Zealand <www.radionz.co.nz/news/national/305573/govt's-$96m-legal-aid-boost-questioned>.[20] Above n 2.