The dichotomy which is New Zealand is the poor and middle class rarely realise how much the courts cater to powerful interests until they find themselves personally before one. But recent Legal Aid revelations are a more visible example of what goes over the public’s collective head.
Court information generally in New Zealand is hidden by a court system which highly values secrecy (judges call it ‘right to privacy’ where the rich and powerful are concerned) and is proficient in silencing the poor lambs which come before it. It is the Star Chamber system of England in the Middle Ages, although New Zealand lawyers who bow to the Court shrink from this comparison.
The press cannot report what laws are broken by the influential and the odd witness is leery to breach a court code of silence whose boundaries are plainly vague and the penalties fierce.
Not so with the legal aid regime in New Zealand where statistics are routinely published.
In the past month it was announced by the Ministry of Justice that six of the eight legal aid offices will be closed. This news was preceded by a New Zealand Law Society report showing the number of lawyers registered to take legal aid cases has fallen 25% in four years, with only 199 of the over 12,000 lawyers nationwide now approved to take civil legal aid cases and 810 approved to take criminal cases.
In a speech given at Waikato University on 7 September 2016, retired High Court Justice Ron Young stopped short of calling the regime a disgrace but did say “In summary legal aid payments are now at rock bottom.”
Deafening silence from the New Zealand legal community was the response. But tall poppy from the legal sheepdom and human rights lawyer Dr Tony Ellis called Justice Young’s comments, which included criticism of a ‘fixed fee system’ paying lawyers $480-$580 for a defended judge alone trial, “brave”. It seemed odd for such self-evident comments to be considered brave until one saw the Law Society’s reaction to the minor furor which ensued.
On 27 September 2016, the Law Society published an article headed “89% of legal aid applications granted”. On the surface the article appeared merely to report the government’s position that legal aid in New Zealand is alive and well. However, the reporting belied a dark regime which the selective headline barely concealed.
Under the current legal aid hourly regime, lawyers are paid $96-$159 per hour. This compares to the national average of $292.70 per hour, as reported by the Law Society in July. In criminal cases, initial legal aid grants of 3 ½ billable hours puts tremendous pressure on lawyers to “think and act quick” with their clients. On the skin-thick surface it is wonderful to see the Crown saving the taxpayers’ money. But hold that thought until you see where they are spending the taxpayers’ money they are saving from legal aid cuts.
New Zealand does not have the pro bono culture of other democracies. Finding a competent legal aid lawyer with time on their hands willing to act at a fraction of their colleagues’ fees is daunting enough. Filling out the applications also takes time and frequently involves dealing with a “specialist advisor” whose primary role is to be convinced beyond the details provided. Unlike legal aid lawyers, these specialist advisors get paid extremely well by the government.
Although never reported by the New Zealand media, the disparity between what the government pays its lawyers to oppose legal aid lawyers is almost beyond belief. In January 2015, kiwisfirst reported that the Legal Services Agency, gatekeeper of legal aid, paid their lawyer $38,500 to oppose an appeal which would have only paid him $3,000-$5,000 if he had been acting as a legal aid lawyer. Many lawyers quite reasonably see this as emblematic of an overt punishment and reward system. Perhaps this explains the recent sycophantic response from the Law Society concerning the disparity it clearly saw to be getting worse. We must believe it is only a coincidence that Law Society functionaries – routinely selected top picks for judges in the New Zealand appointment system – see nothing wrong with the government line. Interestingly, no Law Society functionary critical of the government stance has been appointed a judge in the past 60 years – look it up.
The legal aid statistics also divulge 54,621 applications for criminal legal aid were granted to 810 criminal legal aid lawyers, for an average of 67.4 defendants per lawyer for one year. Good luck for the wrongfully-charged poor in this cattle call environment.
The situation in legal aid civil cases is arguably worse on access to justice. New statistics show that after a 56% drop in applications in four short years, only 63.6% of the current civil legal aid applications are being approved. What is not apparent is approval is often after a protracted and convoluted process which lawyers are increasingly learning is not worth the effort.
It is a sordid saga in New Zealand court history that the Privy Council in 2002 found unanimously in Taito v R the New Zealand Court of Appeal (the highest court at the time) was engaged in systemic abuses of criminal due process premised largely upon a corrupt legal aid regime.
As the Spanish philosopher George Santayana opined, “Those who cannot remember the past are condemned to repeat it.” It helps that New Zealand’s Court of Appeal judges found by the Privy Council to be guilty of due process abuses in Taito were promoted to the new Supreme Court of New Zealand to replace the Privy Council in our legal hierarchy – then tasked with assuring such abuses do not occur again.
Legal aid aside, few seem to care New Zealand stands apart in the world with its draconian regime which requires the poor pay into court the opposing sides’ expected legal defence costs before they are allowed a hearing. It is called “security for costs”. The rich get a free pass on this requirement. The domestic law says only where the plaintiff does not live in New Zealand or “there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding” that they must pay their adversaries’ legal cost as their price of court admission.
New Zealand justice doctrine reasons it is not ‘just’ for a local rich person to spend their money defending themselves against poor people. The rest of the commercial world at least is learning, albeit slowly, that the reference to parties ‘not living in New Zealand’ is a harbinger of the type of justice they will ultimately face in the New Zealand courts – after, of course, they have made a substantial contribution to the local legal community.