Improving access to justice for poor: What Budget 2022 will do

Lawyers describe the legal aid system in New Zealand as broken, with poor pay as a major disincentive. Photo / Michael Craig

Legal aid in New Zealand has been called broken and on life support for several years, with the Government having rejected previous Budget bids to change it. That changed in Budget 2022, but is it enough to ensure that every Kiwi can get the legal representation they should be entitled to?

More than 20,000 Kiwis had been turned away from legal aid representation in the last 12 months.

This is a key finding of a Law Society-commissioned survey last year, which also found that three-quarters of legal aid lawyers had to turn people away, while a quarter of them planned to do less legal aid work - or stop altogether - in the next 12 months.

"This is an indictment on a system which is supposed to ensure representation for people,
irrespective of their status," said Law Society president Jacque Lethbridge.

The main reason for doing less legal aid work was inadequate pay; half of them said they weren't paid for almost half of the hours they worked on their last legal aid case.

Anonymous lawyers quoted in the Law Society's report described the legal aid system as "broken".

"Threshold is very low for people to obtain legal aid. Legal aid rates are extremely low for lawyers - no incentive to do legal aid work," said one lawyer.

The maximum annual income a single person can earn to be eligible for civil legal aid is currently $23,820 - or just over half what a full-time worker on the minimum wage currently earns.

It increases to $37,772 if the applicant has a spouse/partner, or one dependent child. For two dependent children, or if they have a spouse/partner and one dependent child, it's $54,245 - or just under the median income.

Pay rates, which vary according to the seriousness of the case and the level of lawyer experience, haven't changed since 2008. Hourly rates in the Family Court range from $106 to $134.

The highest pay for civil, family or criminal legal aid is $159 an hour, which is for lawyers with at least nine years' experience, and whose case is before the Court of Appeal or the Supreme Court.

This is well below the average charge-out rate for a lawyer, which in 2016 was $292.70, according to a 2018 Otago University report on legal services.

The report found that potentially having to repay legal aid - depending on income and assets - deterred many from seeking it.

Finding a legal aid lawyer was also a challenge; the number of registered civil legal aid lawyers decreased by 54 per cent between 2011 and 2016, and about a third of them weren't currently providing legal aid services.

"The number of available legal aid lawyers is therefore very limited," the report said, adding that they are even less accessible outside major cities.

Meanwhile the number of legal aid grants fell by 13 per cent in 2021 compared to the previous year.

Justice Minister Kris Faafoi says changes to legal aid will mean 93,000 more Kiwis will be eligible for it. Photo / Mark Mitchell

So what's the Government doing about it?

From July this year, hourly rates for legal aid lawyers will be raised by 12 per cent - but Lethbridge questioned whether this was enough.

"A lot of legal aid work is funded by fixed fees, and so if there is no change to this, there is still more to be done to bring true equity," she told the Herald.

"The Law Society will continue to advocate for further change if the dial has not shifted enough. Having enough lawyers available to undertake this work who are properly remunerated is central to ensuring access to justice for all New Zealanders."

Income thresholds are also increasing, a spokesperson for Justice Minister Kris Faafoi said, by 15 per cent from the start of next year.

That would mean a single person would qualify for legal aid if they earned less than $27,393 a year.

The threshold would be $43,438 if they had a partner/spouse or a dependent child. This is still $600 less than what a full-time worker on the minimum wage earns in a year.

Faafoi, who refused several interview requests, said in a statement that the change will open legal aid up to 93,000 more people.

He said an estimated 16,000 additional people won't have to repay legal aid loans because, from the start of next year, the repayment thresholds will increase by 16.5 per cent.

Eligibility and repayment thresholds will also keep pace with wage growth by increasing 1.9 per cent a year for the next three years.

This will all be funded by Budget 2022, which injects almost $190m over four years into legal aid including $41.5m to cover the costs of increased demand, and $148.7m to cover the threshold changes.

"We are making sure people are not denied access to justice based on their financial means," Faafoi said in a statement.

A further $11m from Budget 2022 is going into the Criminal Process Improvement Programme (CPIP), a judicially-led initiative to ensure people show up to District Court hearings as prepared as they can be to move the case forward.

This is a response to too many cases being appearing before court without, for example, a simple document that might have taken the case forward.

The initiative has already taken pressure off the remand prison population, which has increased in part due to the huge increase in how long a court case takes; the average length of time spent on remand in 2021 was 76 days - roughly double what it was 20 years earlier.

Remand prisoners make up 37 per cent of the prison population, up from 27 per cent when the 2013 changes to bail laws made it harder for bail to be granted.

Other factors contributing to this increase include people pleading guilty later in the process, more time between hearings due to a lack of resources, and more people wanting jury trials.

Budget 2022 also included major funding to make the criminal justice system more victim-centric.