Legal aid funding limits creating 'justice gap'

TESS MCCLURE
Last updated 05:00 19/07/2014

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In the first of a series on the impact of sweeping legal aid reforms, TESS MCCLURE investigates the impact of legal aid cuts on the integrity of the justice system. Parts two and three will examine the impact on lawyers and Family Court disputes. 

People's right to a fair trial is being compromised by a crisis in the legal aid system, say lawyers and academics.

University of Canterbury dean of law Chris Gallavin says the growing "justice gap" represents "the most significant challenge to the integrity of the justice system that New Zealand has ever faced".

During the past four years, a third of funding for court legal aid has been cut, dropping from $157 million in 2010 to $102m in 2014.

Cost-saving changes included restricting legal aid to only those earning less than minimum wage, cutting preparation time for lawyers, and charging 8 per cent interest on legal aid debts.

Ministry of Justice data showed people using legal aid in Christchurch had dropped by almost a third, from 5976 to 4190.

Gallavin said the "tightening of thumbscrews across the board" had hit Christchurch particularly hard, with an increase in insurance, tenancy and Family Court disputes after the earthquakes.

He said the mounting paperwork, drop in funding and bureaucratic barriers meant more lawyers simply were not bothering applying for legal aid, and more people were choosing to represent themselves rather than shoulder the cost of legal advice.

These changes could tilt the courts in favour of people who could afford legal representation.

Legal adviser and Just Speak spokeswoman Di White said people appearing unrepresented by a lawyer jeopardised their right to a fair trial.

"Court proceedings are incredibly complex, incredibly intimidating and, if you don't have legal representation, you're at a significant disadvantage.

"For people going up against the power of the state and the capacity the state has to prosecute those who don't have resources to access legal representation themselves, there's a really significant chance of injustice."

White said self-represented people "often have no idea what's going on, need to be guided through the process, so they add a lot of additional costs to the court system", making the cuts seem short-sighted.

The Government moved in 2011 to cut $250m from legal aid over four years. Today, only those earning less than $22,366 are eligible for legal aid, and the top-earning 25 per cent of those need to repay their costs with 8 per cent interest.

White said the reforms placed extra costs on people who "by definition can't afford to pay for the service" and created "a disincentive to take up legal aid, or seek legal representation at all".

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The Ministry of Justice could not provide data on the number of people choosing to self-represent in court.

Community Law Canterbury manager Paul O'Neill said community law centres were "absolutely swamped", and its caseload had doubled since the legal aid changes.

O'Neill said the centre was taking on 3000 cases each year but funding had not increased for the past six years.

After the cuts, he said it had become difficult to find legal aid lawyers in family or ACC law, and smaller practitioners who had previously depended on legal aid were struggling to make ends meet.

White said that while Christchurch had experienced a significant rise in civil litigation, it was now "close to impossible" to get legal aid for a lawyer in civil cases.

"There are a lot of people in Christchurch with legitimate grievances or claims against the insurer and EQC who simply won't be able to fund a lawyer," she said. "Unless something significant changes, people simply won't be able to get their claims heard. For people who have already suffered so much, that seems like adding insult to injury."

A report by Dame Margaret Bazley three years ago highlighted dodgy practices by lawyers claiming legal aid.

Legal Aid Services manager Michele McCreadie said the changes were not a disincentive for criminal lawyers.

McCreadie said interest on loans would "encourage people to consider resolving disputes out of court before using legal aid and to incentivise people who can afford it to pay the debt back".

The ministry had also expanded the Public Defence Service, Family Court mediation services, and legal advice services, she said.

- The Press

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