NZ DEFENCE LAWYERS awaiting action on the issue of raising legal aid remuneration rates may soon see the introduction of provisions for a regular rates review. The Government Justice and Electoral Committee has recommended inserting a new section providing for regular reviews in its report on the Legal Services Amendment Bill (No 2), released late last month.
The Committee recommended by majority that the Bill be passed, but also that a new section be inserted into the principal Act to make regularly reviewing payment rates of listed providers on a contract for services a duty of the Legal Services Agency (LSA).
“We believe that this will ensure rates are reviewed frequently,” the Committee said in its report. It noted many submitters were concerned about legal aid provider remuneration rates.
The rates are at the same level as was set in 1996. They were raised in 1998, but in 1999 were returned to the 1996 level. Since 2000, the LSA has been the central decision-maker for granting aid and approving remuneration applications, with funding through Vote Justice.
According to the report, the LSA’s core function is to administer legal aid schemes in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of the principal Act. The LSA has the ability to use delivery mechanisms, including bulk funding, contracts, and the employment of salaried lawyers. Delivery mechanisms, quality assurance provisions, and remuneration are linked, as the LSA determines how much providers should be paid and how they are paid.
“We were advised that remuneration rates have not affected the supply of legal aid providers nor the quality of their service,” the Committee’s report said. “However, we are concerned that current rates of remuneration may be discouraging senior and more experienced legal practitioners from legal aid representation. We also consider that the quality of the legal services offered under the legal aid scheme is as important as ensuring sufficient providers are available.”
In its minority view, New Zealand National said it did not support the bill in its present form, stating the present Government has “refused to address the need to fairly remunerate lawyers who undertake legal aid work”. According to New Zealand National, in its financial review of the Ministry of Justice on 2 February 2006, the Committee was told that no consideration of legal aid rates would be considered until after the Bill was passed. It noted the publicly reported comments of the Prime Minister that this issue is a ‘‘budget item’’.
It was said at the financial review hearing that work done by Ministry officials indicated there was no shortage of competent lawyers ready to undertake legal aid work at the current rates, according to New Zealand National, which stated “We simply do not accept that view”.
“Current legal aid rates are fixed at 1996 levels. We accept that lawyers are prepared to take legal aid cases at a discount as part of their professional commitment, but there is a compelling case for a substantial increase in legal aid remuneration rates. The current rates are well short of the rates paid by the State for other types of legal services.”
“We also consider that a regular review mechanism should be established so that rates keep pace with the increasing costs of legal practice.”
The minority also recorded “our major reservation is that the current process for the granting of criminal legal aid requires review. Without expressing a concluded view, it may well be that the previous regime, involving judicial determination of criminal legal aid, was better and fairer to those seeking legal aid”.
The Bill updates the financial thresholds for legal aid eligibility, enabling an estimated 1.2 million New Zealanders to access legal aid instead of the current figure of 765,000. It revises elements of the financial eligibility and merits testing regime. It also updates debt management and other aspects of legal aid administration by the Legal Services Agency, which maintains discretionary authority over legal aid grants.