Longest-serving judge hits out at legal aid

HITTING OUT: Justice Sir Andrew Tipping.
HITTING OUT: Justice Sir Andrew Tipping.

The country's longest-serving senior judge has hit out at changes to legal aid, saying they have delivered a system that seriously risks compromising justice.

Retiring after 26 years as a judge, Justice Andrew Tipping told a packed Supreme Court - including Attorney-General Chris Finlayson - that the solution for genuine problems in the legal aid system had "resembled the use of a sledgehammer to crack a nut".

"The scope of legal aid and the rates of remuneration are now, according to the information I have received, at a level that seriously risks compromising the delivery of justice, at least in some fields."

The ceremonial final sitting was a rare opportunity for Justice Tipping to break from the convention that judges do not make public statements outside of their judgments.

The legal aid system is an attempt to ensure government-funded legal representation for those who cannot afford to pay for their own lawyer for criminal, family, civil, and Waitangi Tribunal hearings. It has been repeatedly changed as governments struggle to keep a lid on costs that have ballooned from $111 million in 2006-7 to $169m in 2010-11, according to Justice Minister Judith Collins.

The Justice Ministry took over administering legal aid from the Legal Services Agency in July last year.

Dame Margaret Bazley chaired a wide-ranging review of legal aid and in 2009 made numerous recommendations aimed at improving the system.

As part of the reforms, fixed fees were introduced for specific tasks in criminal cases, with hourly rates applying for only a limited number of hearings. In July fixed-fee schedules were introduced for family court and ACC cases.

Ministry legal aid services director Michele McCreadie said the rates were based on cost data collected over 11 months. However, criminal legal aid payments are being reviewed, with an interim report expected in mid-October.

McCreadie said the new payment system was fair and did not harm the availability or quality of legal aid services. But Law Society president Jonathan Temm said the system was badly underfunded and did not recognise the time involved in some of the work.

Lawyers and their private clients were subsidising government-funded legal aid clients, he said.

"For me the money does not cover the costs."

McCreadie said the number of people eligible for legal aid had not changed. Both she and Collins said the rights of those who needed to use the courts were protected - but Justice Tipping questioned whether the current legal aid system was consistent with guarantees in the Bill of Rights, such as the right to prepare a defence and to appeal against conviction and sentence.

"The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation," he said.

"The irony is that the money saved by not granting legal aid is very often overtaken by corresponding, if not greater, costs being incurred elsewhere. It is a false economy that we seem to be pursuing."

Temm agreed that while the changes had cut costs from the legal aid budget, they had imposed indirect costs - such as court staff and judges spending more time dealing with people representing themselves without legal advice.

Rights were being infringed and injustices would flow, he said.

"If you don't allow them access to justice you sow a seed of resentment in people. You want people to think they had a fair go."

Bazley's 2009 review slammed a "small but significant proportion of very bad lawyers".

In the course of her review she heard of "appalling" behaviour by lawyers, she said, including delaying progress to accumulate fees, not turning up at court, and asking for clients to "top-up" legal aid payments even though legal aid covered the full cost.

Temm said an extensive audit of 3100 legal aid lawyers resulted in disciplinary proceedings against 20. "You have torn the whole system to pieces for this."

The number of legal aid lawyers doing civil, criminal, family, Waitangi Tribunal, and mental health work had now dropped to about 2000. Temm said the public thought that legal aid payments went into the lawyer's pocket but it was not appreciated that the payments also covered junior counsel, experts or technical advisers consulted, travel and accommodation and incidental costs, as well as meeting the lawyer's business costs such as leasing premises, technology and access to legal publications.

Collins acknowledged the commitment of judges and lawyers to ensuring the legal system was properly maintained.

"New Zealand is well served by our justice system and it is vitally important that we ensure that the rights of those who need to use the courts are properly protected."

However, the cost of legal aid needed to be better managed, she said.

Sunday Star Times