Catriona MacLennan: Legal aid changes make mixed bag

Catriona MacLennan

In 1969 came the three-day Woodstock concert in Bethel, New York. Richard Nixon was inaugurated as the 37th President of the United States.

Muammar al-Qaddafi deposed King Idris of Libya and established a republic. Simon and Garfunkel's song Mrs Robinson won best record Grammy, while Oliver won the Oscar for best picture.

All of those events happened more than 35 years ago, and are distant memories for most people.

In 1969 also a legal-aid system was introduced here to provide access to legal advice for those who could not afford to pay for it themselves.

The income criteria for accessing legal aid have not been changed in that 36-year period; what was initially a generous system has, through inflation, become progressively harder to get.

The Minister of Justice, Phil Goff, announced this month that eligibility income thresholds were to be raised to restore to a wider range of low income-earners the ability to gain access to legal representation for civil, family and income matters.

The move is well overdue. Thousands of people are being shut out of the legal system on financial grounds.

The community law centre in which I work, Nga Ture Kaitiaki Ki Waikato, and others round the country act for people who are not eligible for legal aid but who cannot pay for lawyers themselves.

However, we simply cannot deal with all of the people requiring help. The problem is particularly acute for those who are working, but are on very low incomes.

In order to obtain legal aid, people must meet the financial criterion of income of $19,060 or less.

People earning more than that are considered to have incomes which are too high, meaning they should be able to pay lawyers themselves.

The legal matter for which they are seeking aid must also fit within a prescribed category. Matters outside those parameters will not qualify, even when people plainly need help. In the criminal sphere, the test is generally that the defendant faces a real prospect of a jail sentence.

Mr Goff acknowledged that the changes proposed would be fairer to low-income working families, who are disadvantaged in relation to those on benefits.

That is because legal aid is granted almost automatically to those on benefits, while those who are working find it extremely difficult to meet the financial criteria.

One group particularly disadvantaged are women in employment who are seeking to leave violent relationships. Because they are working, they will almost certainly not qualify for legal aid. But they will generally be on extremely low incomes and unable to pay lawyers themselves.

If they and their partner have even a small interest in a house, a charge will be taken on the property if legal aid is granted to cover custody and property matters.

This means that the legal fees have to be repaid when the house is sold - an almost certain outcome on separation for women on low incomes who have no hope of servicing a mortgage on their own.

This condemns the woman and children to the expense and uncertainty of the rental market. Most will be in no position ever to attempt to own a home again.

The new criteria are expected to increase the number of people potentially eligible for legal aid from 765,000 to 1.2 million. Income thresholds for civil cases will be based on gross income and adjusted according to family size.

This will mean that, in future, a family consisting of two adults and one child would qualify for legal aid on income of up to $36,371.

But Mr Goff said that with the loosened income criteria would come tighter other tests for legal-aid grants.

A merit test is to be introduced for family proceedings. This will mean that regard will be had to whether the applicant is excessively litigious, and whether there are reasonable grounds for taking proceedings.

But the criteria are also supposed to place more emphasis on better protection of vulnerable people, such as domestic violence victims and children. The test at present is the likelihood of the proceedings being successful.

It is to be hoped that this change will in practice provide greater help to domestic violence victims and children and will not simply end up being the old test applied using different wording.

In relation to criminal matters, Mr Goff said the gravity of the offence test was to be changed. In future, the interests of justice test would be met where offences had a statutory sentence of six months' jail or more.

Where the sentence was less than six months' jail, the test would assess the complexity of proceedings, whether a substantial question of law was involved and whether the individual could understand the proceedings without help.

The new system will also require more people to repay some or all of the legal-aid grant. At present about 8000 people are required to repay.

That figure will rise to 22,000 when criminal legal-aid recipients - who now are exempt from the requirements for repayment - are brought into the scheme.

This appears to be of extremely dubious merit. The likelihood appears slim that those either sentenced to jail, or spending long periods in custody on remand, would be in a position to repay legal aid.

The administrative cost of seeking to grind tiny payments out of such people is also likely to be high.

* Catriona MacLennan is a South Auckland barrister.