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Legal Assistance (Sustainability) Bill (Consistent) (Section 24, 27) [2011] NZBORARp 24 (1 August 2011)

Last Updated: 29 April 2019

Legal Assistance (Sustainability) Bill

1 August 2011 Attorney-General

Legal Assistance (Sustainability) Bill – Consistency with the New Zealand Bill of Rights Act 1990 (PCO 15182/3.2)

Our Ref: ATT395/159

1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990. While the Bill raises possible issues with ss 24 and 27 of the Bill of Rights Act, I conclude that the Bill appears to be consistent with that Act.
2. The Bill makes changes to the provision of criminal and civil legal services paid for by the Crown, including legal aid, lawyer for child and youth advocate services. Part 1 of the Bill amends the Legal Services Act 2011 and Part 2 of the Bill amends various other Acts [1] that allow for a court-appointed lawyer to represent children.
   

Criminal legal aid

3. For criminal legal aid applicants who face a maximum term of imprisonment of 3 years or less the Bill applies the income and capital thresholds that apply to civil legal aid. If either of these relevant thresholds are exceeded legal aid must be declined, unless the Commissioner is satisfied there are special circumstances, having regard to the likely cost of the proceeding to the applicant and the applicant’s ability to fund the proceedings if legal aid is not granted.
4. For applicants facing a maximum term of imprisonment of more than 3 years imprisonment the Commissioner must determine whether the applicant has sufficient means to enable him or her to obtain legal assistance, having regard to their income and capital.
5. Section 24(f) of the Bill of Rights Act provides that every person charged with an offence shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.
6. No inconsistency with s 24(f) arises here. For those persons facing a maximum term of imprisonment of more than 3 years the Commissioner is directly required to assess sufficiency of means as is required by s 24(f) of the Bill of Rights Act.
7. Whilst for persons charged with offences punishable by 3 years imprisonment or less, set income and capital thresholds apply, these thresholds must themselves be set in a manner that is consistent with the sufficient means test in s 24(f). In any event, the Commissioner has a residual discretion to grant legal aid if there are special circumstances having regard to the likely cost of the proceeding to the applicant and the applicant’s ability to fund the proceedings if legal aid is not granted.
   

Civil legal aid

8. Changes to civil legal aid include amendments to the Legal Services Act 2011 - adjusting eligibility for civil legal aid, reintroducing a user charge for civil and family legal aid and enabling interest to be charged on legal aid debts. Various other Acts [2] that allow for a court-appointed lawyer to represent children are amended to require such lawyers to be an

approved provider and to allow in some types of Family Court proceedings for the parties to be required to contribute to the costs of court-appointed lawyer for the child.

9. Alterations to entitlements to legal aid for civil proceedings do not raise any issue of inconsistency with the Bill of Rights Act.
10. The right to natural justice guaranteed by s 27(1) of the Bill of Rights Act may in some cases require that a litigant be allowed legal representation. [3] There is, however no positive obligation on the state to provide or subsidise that legal assistance, and no inconsistency with the Bill of Rights Act if access to the funding that the state does provide is curtailed.
11. In accordance with Crown Law practice this advice has been peer reviewed by Jane Foster, Crown Counsel.
    

Austin Powell Crown Counsel

Footnotes:

1. Care of Children Act 2004, Child Support Act 1991, Children Young Persons, and Their Families Act 1989, Domestic Violence Act 1995, Family Proceedings Act 1980, and Property (Relationships) Act 1976.
2. Care of Children Act 2004, Child Support Act 1991, Children Young Persons, and Their Families Act 1989, Domestic Violence Act 1995, Family Proceedings Act 1980, and Property (Relationships) Act 1976.
3. Drew v Attorney General [2001] NZCA 207; [2002] 1 NZLR 58 (CA).
   

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Legal Assistance (Sustainability) Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.