Tuesday, 1 December 2009

access to justice

like gordon campbell, i'm not particularly happy with the drastic changes proposed for the legal services agency and the speed with which they will be put through. like so many other areas of policy, this looks like another rushed decision that is likely to lead to significant hardship for many people.

the way that our current adversarial system is structured means that access to justice depends on the amount of money the parties have to spend. in criminal cases, the prosecution has the significant backing of the crown. to ensure a fair outcome, the defendant needs to have similar financial backing.

the legal aid system goes part way to providing balance to the system. the problem is that you have to be quite poor before you can access legal aid. and even if you do qualify, legal aid now functions as a loan, so that you will eventually have to pay the money back out of assets or earnings. the potential size of that loan will influence the access to justice for many people, and determine how far they are prepared to go in a particular case.

so the current system doesn't function very well, but it does function adequately. the althernative is to have a public defender's office, where lawyers work on fixed salaries so are less likely to be tempted to take longer on a particular case or to draw out cases through appeals.

on the other hand, such an office needs adequate funding to work properly, and salaries need to be competitive. otherwise, the best lawyers go to private practice and the worst lawyers become public defenders, meaning that the poorest people get the worst representation. legal aid currently doesn't provide great rates of compensation, and in fact, there is very little incentive for top-earning lawyers to take legal aid cases.

this is an issue that particularly affects women, as women are more likely to be in poverty and are often in need of legal aid in cases of domestic violence. any weakening of publicly funded legal services affects the wellbeing of more than individuals, it affects families.

just in case anyone is interested in the make up of the governing board of the legal services agency, here are the members who have resigned:
carole durbin (chair) - lawyer with simpson greerson, and many other roles
alister james - barrister
pare keiha - pro-vice chancellor maori, AUT with various post-graduate qualifications
jane taylor - barrister

these two, appointed in september this year, are staying:
jane huria - provides corporate governance via hsr governance ltd
ross tanner - specialist in public policy, former deputy state services commissioner (1993-2001)

and the following two have just been appointed:
john hansen -retired high court judge
john spencer - company director

so just like the ACC board, all those appointed by the previous government have been removed. make of that what you will, but if ACC is anything to go by, the changes at the top aren't likely to be good for those at the bottom end of society.

1 comment:

Bavardess said...

While I agree with you that these changes are being pushed through very quickly, there is no doubt that the current legal aid system is broken and is not serving anyone - defendants or complainants - particularly well.

I also think you are being rather unfair to assume that all lawyers are only driven by the dollar, so the 'good ones' will go into private practice and the dross will be left to do the public defending. Many people go into law because they have a genuine desire to serve the cause of justice and they want to help people. Such people would make fine public defenders. I have a couple of good friends who fall into this category, and they are definitely not in the job for the cash. In fact, in the current system, they make a very average wage. I think our perception of lawyers is often quite skewed by television depictions of the corporate shark, such as 'Boston Legal'.