Government details further changes to legal aid

Justice Minister Simon Power today announced a comprehensive package of reforms for legal aid services.

"The Government has largely accepted Dame Margaret Bazley's report on transforming the legal aid system and plans to implement her key recommendations over the next two years," Mr Power said.

"The report identified system-wide failings and pointed to an urgent need to rebuild trust in our legal aid system.

"I was deeply concerned by the problems Dame Margaret found. They go to the very heart of the integrity of our legal system and it's essential the Government moves quickly to address them.

"The changes I am announcing today do that. They provide the detail of the changes announced last December, and advance proposals to reform legal aid."


The new legal aid system will include:

• A new quality assurance framework where legal aid lawyers will have to demonstrate competency to a selection committee on objective criteria. Performance will be monitored and sanctions imposed where appropriate. Lawyers will have to re-apply after a fixed term (usually 3 years).
• Expanding the Public Defence Service to Wellington, Christchurch, and Hamilton. The service provides a high quality criminal legal service through the use of salaried staff rather than contracted lawyers.
• Improvements to the duty lawyer scheme, which includes appointing supervisors and enhancing criteria for selecting duty solicitors.
• Streamlining processes for assessing applications for low-cost criminal cases in the summary jurisdiction. This includes a shorter application form and a process where some low-cost cases will not be subject to repayment.
• Changes to the preferred lawyer process which will focus on when a person can choose a legal aid lawyer and when one will be assigned for them, to ensure all legal aid lawyers are competent for the cases they undertake.
• Developing consistent standards for community law centres to ensure all New Zealanders have access to the same level of service.
• Replacing the Legal Aid Review Panel with a Legal Aid Tribunal, to increase transparency in decision making.
• Bringing the functions of the Legal Services Agency into the Ministry of Justice, where an independent statutory officer will grant legal aid.

"I'm confident this package of changes will help build more confidence by the public that the legal aid system is providing quality services for those who need it, while giving taxpayers value for money," Mr Power said.


"The Ministry of Justice has been working closely with the Law Society to develop a quality assurance system for legal aid lawyers. Performance issues will be addressed through a new monitoring and review procedure.


"I believe the quality assurance system will significantly improve the quality of services.


"These changes will ensure that the legal aid system focuses on providing quality access to justice to people who use it."


Amending legislation is required to implement many of the changes, and will be introduced to Parliament later this year.


Last year there were 85,156 legal aid grants costing taxpayers $131 million.


The Bazley report can be viewed here


Previous Government announcements on legal aid can be viewed here


Additional information about the new legal aid system:

Quality assurance framework for legal aid lawyers:


The Government has agreed to introduce a new quality assurance framework into legislation to ensure all legal aid lawyers have the skills to do the job assigned to them. In the future it's expected only "approved providers" will be offered legal aid assignments. There will be no fee for lawyers to apply to become approved providers.


The Ministry of Justice has been working closely with the Law Society to develop the policy and legislative framework for approving providers under the quality framework.


This will include the following:
 

• New criteria for approval as a legal aid lawyer. In addition to the current focus on experience, lawyers will have to demonstrate competence which will be assessed according to objective criteria.
• Selection committees will be established to accredit lawyers, who will need to demonstrate they meet the criteria (for example, providing feedback from senior members of the legal profession and law firms).
• Lawyers will be approved to provide legal aid services for particular matters (such as family or criminal law cases) and for fixed periods.
• The Ministry will monitor the performance of providers. This may include court observation, client feedback, and/or peer review processes.
• A Performance Review Committee will be established to consider concerns and impose sanctions where appropriate, which may include non-payment for lawyers who do not deliver the required service. If a problem is significant enough to call into question the overall performance of the lawyer, the Performance Review Committee will assess whether any additional sanctions should apply. These could include working under supervision or suspension from legal aid provision for a period of time.

Performance monitoring and audit systems will be in place by July 2012.


Expanding the Public Defence Service (PDS):


In Budget 2009, the Government provided funding to expand the PDS across the Auckland region. The Government has now agreed to extend it to Hamilton, Wellington, and Christchurch by the middle of next year. There will be more upfront costs associated with setting up the new services in these centres. However, the evaluation of the current PDS showed that having a PDS deal with a proportion of cases in large centres was cheaper over time and the quality of services was at least as good.


The expansion of the PDS will help improve quality and efficiency in the legal aid system by providing training and supervision for junior lawyers, encouraging competition, and offering a benchmark for the cost of the service. Following the expansion of the PDS, consideration will be given to the benefits of employing salaried lawyers to supply family and civil legal aid services.


Enhancements to the duty lawyer scheme:


The Legal Services Agency (LSA) has introduced changes to the duty solicitor scheme in six Auckland and Wellington courts to improve the performance and accountability of duty solicitors. Changes include appointing supervisors, enhancing the criteria for selecting duty solicitors, and employing clerical staff to complete legal aid applications during busy court periods. These improvements will be extended to a number of other large courts over the next year.


The use of duty solicitors in other criminal matters and law types will also be considered. The aim is to provide a better and more comprehensive initial service to clients and court users who would benefit from being assisted by a duty solicitor.


Changes to the legal aid granting process:


Changes will be made to streamline legal aid granting processes to reduce the time lawyers and clients spend dealing with administrative matters. Legislation will be required to introduce some of the changes. At this stage the streamlined process will apply only to summary criminal legal aid grants, which account for 90% of applications. Three-quarters of these claims are for $650 or less and only 3% are over $2,500.


Improvements will include a shorter application form and a process where grants under a certain amount will not be subject to repayment. Where more than that sum is required, a more rigorous process will be used (with a more comprehensive application form and repayment obligations). Legal aid payments to lawyers will continue to be based on the hours worked and the experience of the lawyer providing the advice.


Changes to the preferred lawyer policy:


Changes to the preferred-lawyer policy will be considered as part of work looking at improving case assignment processes. The focus will be on specifying the conditions when a person can choose their lawyer, as against one being assigned to them, to ensure all legal aid lawyers are competent for the cases they undertake.


The LSA will start implementing new assignment processes for criminal cases in the second half of 2010. There will be consultation with lawyers before decisions are made on the detail of the new processes. Changes to the preferred lawyer policy will not require legislative amendment. Once changes are in place in the criminal jurisdiction, an expansion to other law types will be considered.


Consistent standards for community law centres:


It's important that all New Zealanders have access to the same services from community law centres, no matter where they live. Community law centres need to ensure they can provide a consistent quality of legal services to their communities.


Community law centres also need to ensure they are meeting objective service standards and can monitor their service delivery against the standards. The LSA is working with community law centres to help in the planning and development of standards as a part of the agency's contract renegotiation process.


Changes to the Legal Services Agency:


As announced in December, the LSA will be disestablished by legislation and its functions moved into the Ministry of Justice. An independent statutory officer will be established to ensure that there is independence from government in decisions on granting legal aid to individuals. As part of this transition, the Legal Aid Review Panel will be replaced by a Legal Aid Tribunal situated within the tribunals unit of the Ministry of Justice.


The LSA has already started a period of change and the focus is on maintaining the continuing delivery of legal aid services. The LSA's head office will co-locate within the Ministry's national office building during 2010, to allow a smoother transition. However, until legislation is passed, the LSA will still operate as an independent Crown agency and will continue to be accountable to its board.


Legal aid for Treaty of Waitangi settlement negotiations:


There will be no changes to legal aid funding for claimants pursuing claims before the Waitangi Tribunal. However, there will be improvements to the administration of funding for claimants negotiating with the Crown to achieve a Treaty settlement. This will address the concern raised by the Bazley report relating to potential duplication of funding.


It's desirable that a single government entity be responsible for funding the settlement negotiation process. The Office of Treaty Settlements (OTS) has the expertise to ensure the total amount of funding for each claim is allocated fairly as part of an integrated process. The OTS will become the sole government funder of claimants in the settlement negotiations process. The existing LSA funding, which has been used to fund legal representation for the settlements negotiations process rather than Waitangi Tribunal proceedings, will be transferred to the OTS.


The Crown Forestry Rental Trust (a non-government agency which provides some funding for settlement negotiations involving crown forests) will not be affected by these changes.