This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz
Legal aid is a form of government funding for legal services for people who cannot afford a lawyer and is an essential resource for people who would otherwise be unable to access legal representation. According to legal adviser and JustSpeak spokesperson Di White, “court proceedings are incredibly complex, incredibly intimidating and, if you don’t have legal representation, you’re at a significant disadvantage.”[1]
However, the New Zealand legal aid system has been subject to significant funding cuts[2] over the past few years, with total funding decreasing from $157 million[3] in 2010 to $138 million in 2016,[4] or $125 million in inflation-adjusted terms. This significant reduction in funding has led to a reduction in the total number of people eligible for and receiving state-funded legal aid. Between 2010-2015, the total number of legal aid funding requests approved fell from 66,727 to 49,569, or a total reduction of 25.7%.[5]
There have been a number of other changes to legal aid that have undermined access to reliable legal advice for poor people. Most significantly, lawyers are now to be assigned on a rotational basis so that offenders facing less serious charges can no longer choose the lawyer they want.[6] According to lawyer Maria Dhyrberg QC, this is particularly difficult for people “who could no longer nominate counsel they felt would best represent their interests, but instead had to settle for counsel assigned to them on an apparently random basis, with whom they may have had no existing relationship.”[7]
This lack of funding and subsequent lack of available legal aid resources represents a severe injustice against a part of the population that is not able to afford private legal counsel, but does not fall under the new tightened legal aid criteria.[8] This has created what is being referred to as the ‘justice gap.’[9] According to Chris Gallavin, Dean of Law at the University of Canterbury, this gap represents “the most significant challenge to the integrity of the justice system that New Zealand has ever faced.”[10]
These changes have had far-reaching negative impacts. According to Gallavin, “the funding cuts and bureaucratic barriers meant more lawyers were not bothering applying for legal aid, and more people were choosing to represent themselves rather than shoulder the cost of legal advice.”[11] Justice Andrew Tipping, New Zealand’s longest-serving senior judge, said in 2012 that the recent cutbacks to legal aid had compromised the justice system.[12]
There is no doubt that the underfunding of the New Zealand legal aid system is resulting in consequences that further compromise people’s rights to a fair trial.[13] In the short term, the government must significantly increase the funding of legal aid.
[1] Tess McClure, “Legal Aid Funding Limits Creating ‘Justice Gap’,” Stuff, 19 July 2014. http://www.stuff.co.nz/national/crime/10285613/Legal-aid-funding-limits-creating-justice-gap.
[2] Ibid.
[3]Ibid.
[4] New Zealand Treasury, The Estimates of Appropriations 2016/17 – Justice Sector, (Wellington, New Zealand Treasury, 2016), 72.
[5] New Zealand Law Society, “Legal Aid Funding 2008 to 2015,” New Zealand Law Society, 24 November 2015. https://www.lawsociety.org.nz/practice-resources/research-and-insight/practice-trends-and-statistics/legal-aid-funding-2008-to-2015.
[6] Citizens Advice Bureau, “Reforms to Legal Aid,” Citizens Advice Bureau, 16 March 2015. http://www.cab.org.nz/aboutus/news/na/Pages/ReformstoLegalAid.aspx.
[7] Maria Dhyrberg, “Court of Appeal Rules Criminal Fixed Fee Regime to be Unlawful,” ADLSI, 31 May 2013. http://www.adls.org.nz/for-the-profession/news-and-opinion/2013/5/31/court-of-appeal-rules-criminal-fixed-fee-regime-to-be-unlawful/.
[8] Citizens Advice Bureau, “Reforms to Legal Aid,” Citizens Advice Bureau, 16 March 2015. http://www.cab.org.nz/aboutus/news/na/Pages/ReformstoLegalAid.aspx.
[9] Tess McClure, “Legal Aid Funding Limits Creating ‘Justice Gap’,” Stuff, 19 July 2014. http://www.stuff.co.nz/national/crime/10285613/Legal-aid-funding-limits-creating-justice-gap.
[10] Ibid.
[11] Ibid.
[12] Sunday Star Times, “Longest-serving Judge Hits Out at Legal Aid,” Stuff, 26 August 2012. http://www.stuff.co.nz/national/7549237/Longest-serving-judge-hits-out-at-legal-aid.
[13] However, No Pride in Prisons recognises that a ‘fair’ trial is impossible within the colonial, bourgeois court system.