There has been a 41 per cent increase in the cost of legal aid in recent years. Photo / Greg Bowker
New Zealand’s besieged legal aid system is costing taxpayers hundreds of millions of dollars a year but still tens of thousands of Kiwis are being turned away and potentially denied their right to justice.
Chief Justice Helen Winkelmann has described the legal aid system as “broken” and warned it “may collapse” while Minister Kris Faafoi has acknowledged there are serious problems with the system.
Now the legal fraternity is hoping Budget 2022 could contain the necessary lifeline to bring the beleaguered system back from the brink.
Legal Aid is government funding for people in need of a lawyer and can’t afford one. It is considered a loan and recipients may have to pay part or all of it back depending on how much they earn and what property they own.
There has been a 41 per cent increase in the cost of legal aid in recent years with $225m spent in the year ending June 30, 2021. That’s up from $160m in the year to June 2018.
The increase is said to be being driven by an increased number of cases, which are taking longer to prepare for and resolve, complications caused by Covid, administration costs and stagnant remuneration rates.
While many lawyers are hoping for more funding Sue Moroney, chief executive of Community Law Centres O Aotearoa, believes the entire system needs a complete overhaul.
Community Law provides free legal support and advice to those who need it but can’t afford a lawyer but refers clients to legal aid if they need representation.
“We are referring people into a broken system and it’s pretty soul destroying,” Moroney said.
While more money might provide a temporary fix and entice some lawyers back to legal aid Moroney believed other more cost-effective options needed to be investigated.
“We think that it’s time that the whole model is reviewed.”
She said the cost was being driven up as cases were becoming more complex due to Covid, so were taking longer to prepare and resolve.
Examples included shared custody arrangements complicated by regional lockdowns and employment matters affected by vaccine mandates.
Despite the vast amount being spent on legal aid, Law Society president Jacque Lethbridge said the organisation’s Access to Justice survey showed 20,000 people had been turned away in the past 12 months.
“That’s not acceptable for me or anyone in the law. Structural change is needed in our legal aid system, and fast,” Lethbridge said.
The survey’s results also showed on average legal aid lawyers were not remunerated for half of the hours they spent on their last legal aid case and 25 per cent of legal aid lawyers planned to do less legal aid work or stop altogether during the next 12 months.
“The primary reason for wanting to do less legal aid work is inadequate remuneration.
“Half of the lawyers surveyed rated the legal system as poor or very poor at providing everyone in Aotearoa with access to justice.
“The fact these practitioners are not prepared to continue is indicative of a system that desperately needs both structural change and better support.”
Increasing costs were the result of more work, Covid and the failure to increase remuneration rates in the past decade, she said.
Lethbridge said the society had urged the Government to bring in a substantial, overall increase in legal aid remuneration in Budget 2022 to at least stem the flow.
This included better funding for junior lawyers to support legal aid seniors, which was currently not funded, and compounded the problem, she said.
“Because these junior lawyers are the senior lawyers of the future. Succession is fundamental to a well-functioning justice system.”
Lethbridge said no one was immune from contact with the judicial system and everyone deserved the right to access legal advice and quality representation no matter their circumstances.
“Aotearoa New Zealand has a proud history of wanting a justice system that ensures people are well represented; that is what is at the heart of these required changes to legal aid.”
Minister for Justice Kris Faafoi acknowledged there were long-standing serious problems with the legal aid system.
He said legal aid was central to ensuring equity in New Zealand’s justice system and making sure that people were not denied access to justice based on their financial means.
Improving access to justice by strengthening legal aid was a priority, Faafoi said, however, he offered no fix to the problem and wouldn’t be drawn on what if any solutions might be contained in the budget.
National justice spokesman Paul Goldsmith said while the Budget might include some additional legal aid funding, he believed the focus should be on improving provider capability and quality of service.
“We do need a root and branch examination – the last one happened in 2009, so it’s the right time to consider all aspects of the legal aid system,” Goldsmith said.
He noted 19 per cent of legal aid lawyers audited in the 2020/21 financial year were not performing at an acceptable standard but had not yet been re-examined to ensure the quality of service had improved.
“New Zealanders should be able to trust legal aid services are of a minimum standard, especially given the increases in Government expenditure.”
Goldsmith said more defendants were electing trial by jury and court cases were taking longer which was inevitably increasing the hours spent on each case.
Whanganui barrister Chris Wilkinson-Smith said the legal profession would be watching this week’s Budget 2022 with great interest to see if there’s funding allocated to fix the broken initiative.
“There is already significant debate amongst the profession of what steps can be taken if the government does not respond,” Wilkinson-Smith said.
The hourly rate for legal aid lawyers varies between $92 and $159 depending on the seriousness of the charges and the lawyer’s experience, the Ministry of Justice website states.
Wilkinson-Smith said rates had remained virtually unchanged over the past two decades and while this was bad for lawyers it was even worse for those seeking quality representation.
“These rates have not adjusted to reflect the costs of paying staff, rent, fuel, insurance. Most of these expenses have more than doubled in 20 years.
“The legal aid rates and bureaucracy of seeking legal aid have seen a mass exodus of willing lawyers.”
Wilkinson-Smith said the price of administering the system combined with an increased volume of disclosure provided to defence lawyers, obliging them to spend longer reading a file and preparing their case were contributing to the rising cost of legal aid.
“The increase in the volume of disclosure obliges defence lawyers to spend far longer reading a file.
“This is due to the exponential growth in digital data gathered by police, for example the data collected by the police National Intelligence Application database (NIA) grew tenfold between 2014 and 2020.”
He received calls on a weekly basis, from around the country, from people looking for a legal aid lawyer as civil legal aid had all but vanished in many smaller centres.
Various legal professional bodies had raised the same issues, setting out in detail the dire statistics and requesting the government to take action, he said.