The policies of the New Zealand government regarding legal aid have been found to be unlawful.
Paragraph 133 (page 44) of the Court of Appeal decision re Criminal Bar Association v Attorney General includes this wee gem, regarding access to justice in New Zealand - "But the issue is not what is desirable as a matter of sound public administration, but what is lawful." Glad we cleared that up. To hell with sound public administration and all that nonsense ;) - I heard a Justice on the bench of the Supreme Court utter the words "We [he and his fellow Justices and Judges] rewrite the law not infrequently." Watching the way words are used in Courts is a most interesting Occupation . . . more so than most of the fiction we're fed by the mass media . . .
CRIMINAL BAR ASSOCIATION OF NEW ZEALAND v ATTORNEY-GENERAL:
(CA606/2012)  NZCA X.
"The Court of Appeal’s judgment holds that the Policy is unlawful in two respects. The first is that the Policy was made by the Secretary. By the Policy the Secretary effectively dictates to the Commissioner in respect of the grant of legal aid for most criminal cases. That is unlawful because the Legal Services Act makes it clear that the grant of legal aid in individual cases is the function of the Commissioner, and one which the Commissioner is to exercise independently.
In this part of its judgment the Court emphasises the importance Parliament placed on the independent exercise of the Commissioner’s functions. The prosecution of crime is carried out by the Solicitor-General as an independent law officer of the Crown, to avoid any appearance of political decision making in relation to public prosecutions. Parliament considered it important that the granting of legal aid to those accused of crime be controlled by an independent person, as the Act provides. It is inappropriate that the Secretary dictate to the Commissioner how he should perform that independent function."
There are summaries discussing the implications of the decision on the Scoop website, and elsewhere.
"In respect of complaining about the IPCA, there is no process I know of short of the High Court in litigation.
However a new Authority is about to be appointed Sir David Carruthers previously Parole Board Chairperson, and before that Chief District Court Judge.
You could complain to him that his staff have not done their job, as a new broom he might be interested.
Given . . . changes in Legal Aid funding I should advise you I am not going to be able to take your case on legal aid.
I have been doing criminal legal aid files for some time, but with the introduction of fixed fees and the associated administrative burden now required for legal aid, in order to make a living I am forced to reduce the amount of legal aid cases I can do.
Partly as result of this tightening in the year ended March 2011 , i.e. 12 months ago and that I had my worst year ever earning less than the average wage, $50,000, as a result I have been forced me to reconsider the number of cases on legal aid I can take.
In the civil area, where your case falls, the paperwork required from the Legal Services Agency is onerous.
It is does not surprise me that of 4000 lawyers willing to take legal aid prior to 31 December 2011 now only about 2000 will.
I regret given the time delay and still not having all your files, and the new legal aid regime that trying to take on your case requires more time than I have.
Regrettably the payment offered form civil legal aid (which you of course are likely to be required to repay) does not provide a fair reward for work done.
Whilst I do not like to reduce the decision to a financial one, I regret having to be more selective in taking legal aid cases, and have turned down 10 in the last month, your potential case is not even ready to be considered and in addition to financial considerations I regret I don't have the time.
I will return your files.
Tony Ellis."It hardly seems to matter though, because when the government doesn't like the law, it just changes it. I heard Justice Peter Blanchard say in the Supreme Court one day - "We change the law not infrequently."
And as lawyer Andrew Geddis said recently, we owe it to ourselves to be outraged.
More news reports about similar attempts to limit access to justice here and overseas at these links: