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PETER WALKER examines the Legal Services Bill 1999 (NZ).
In New Zealand the Legal Services Act 1991 established a unique system of service delivery based on the creation of District Legal Services Committees within the regions to undertake and administer the delivery of legal services overseen by a central Legal Services Board. These committees and the Legal Services Board included an expansion of the decision-making process from Law Society members alone to include members representing the wider community. However the Legal Services Billl999 proposes the abolition of these committees, instead concentrating the administration and delivery of legal services to a centralised bureaucratic agency.
This proposed shift, though seemingly only focused on the delivery of legal services, has wider implications for the delivery of social services in general. It ignores all the reports and evidence in favour of a New Right crisis response which can only promise short-term relief and postpones the inevitable next crisis.
While the Legal Services Act 1991 certainly had its drawbacks it contains some tentative steps towards establishing community control over legal services. This is an endpoint envisaged by Te Whainga i te Tika, a 1986 report from the Advisory Committee on Legal Services, and many previous reports (for example, Discussion paper on Access to Law, 1981). While many of its recommendations were overlooked at the time of its writing, the report formed the basis for the drafting of the Legal Services Act 1991. The major recommendations that arose from the report centered around the need for more participation of the users of the services in the legal system-making the system more accountable and therefore more effective for the consumers of legal services.
The Legal Services Act 1991 included for the first time an expansion of the representation on the decision-making bodies affecting legal services, the Legal Services Board and the Legal Services Committees. It was an attempt to secure more community input into the delivery of legal services through two mechanisms:
• the establishment of limited regional control and involvement through the creation of 19 legal services districts, within each a District Legal Services Committee to administer and oversee legal services;
• the inclusion of a wider community representation on both the District Legal Services Committees and at a national level, the Legal Services Board, including one member nominated by the Ministers of Maori Affairs, two members nominated jointly by the Ministers of Consumer Affairs and Women's Affairs and one nominated to represent Community Law Centres.
Both these initiatives are now under threat in the Legal Services Bill 1999. An analysis of the Legal Services Bill 1999 finds it wanting in four significant areas.
The Legal Services Act 1991 recognises the need for wider community involvement in its decision-making processes by establishing positions for representatives of Maori, consumer and women's groups and community law centres. It was a major advance over the previous process where decisions were the sole domain of lawyers.
The Legal Services Bill1999, however, proposes a turning back of the clock. Its proposals are a direct counter to the devolution policies articulated by both previous governments and flies in the face of greater community participation and communitarian concepts.
It has been argued that the 'move to community represents one of the most significant theoretical and practical developments of social policy to emerge during the post-war years'.[1] Although abused by New Right cost cutting objectives the focus of community participation is arguably the key to breaking out of the old sterile impasse between the state and the market. Community participation and community accountability are seen as essential factors in the delivery of legal services most especially those delivered through community law centres.[2]
The return to centralised bureaucratic domination is articulated through the Legal Services Bill 1999 which opts for centralisation. Under the 1999 Bill overall community representation has declined from a possible 60 community members at all levels to just two. These two members are accountable to politicians, not the community. One is appointed in consultation with the Minister of Maori Affairs and the other in consultation with the Minister of Women's Affairs. Community Law Centres fare worst with a decrease from 20 possible community law centre members to none.
This substantial reduction in community representation will significantly reduce the ability of the community to influence major decisions regarding the operation of legal services limiting community responses, so obvious with community law centres, in favour of returning totally to the failed individual lawyer/legal aid based legal system. This reduction in representation is especially pertinent for Maori as the new Bill limits their representation to one person on the Legal Services Agency Board thus allowing no influence from Iwi (tribe/clan) on the legal services in their rohe (district). The changes to Maori representation drastically limit the ability of the Legal Services Agency to enact the recommendation of Te Whainga i te Tika that '[l]egal services must reflect our bi-cultural heritage'.[3]
The centralisation of power to the proposed Legal Services Agency also disenfranchises the regions by disestablishing the District Legal Services Committees. These committees have the power to represent the wishes of their region both in the delivery of legal aid and through their input and support of community law centre initiatives. The mechanism of these Committees is essential to the concept of citizenship[4] with citizens co-operating to attempt to access an appropriate delivery of services to the community.
Under the Legal Services Bill1999 all decisions on legal aid, the duty solicitor scheme, the police detention scheme and community law centres are the responsibility of the Legal Services Agency alone. More important, perhaps, is that the regions lose their ability to oversee and respond to any special circumstances that may arise for them. This is especially important in relation to the establishment and ongoing input into community law centres.
So why does the Legal Services Bill1999 move away from the position of participation contained within the present Legal Services Committees/Legal Services Board structures? The first and seemingly obvious reason is that the new structures will seek to save money. Instead of supplying meeting fees for 19 Committees and one Board there is, under the new Bill, only one Agency and one Public Advisory Committee to fund. The real costs, however, that are under question are the costs needed to administer and fund legal aid. Under the Legal Services Act 1991 there has been an increase in spending on legal aid from $50 million a year to over $100 million in the last five years.[5] While the centralisation of applications, outlined in the new Bill, is an attempt to stem the cost of legal aid by increasing bureaucratic control, this control is apparently anticipated by the Minister of Justice to cost more money.[6] Clearly the changes proposed under the Legal Services Bill are tinkering with an expensive system rather than a serious attempt to seek community participation, alternative dispute resolution and community based alternatives to courts as recommended by Te Whainga i te Tika.[7]
Another reason seems to be the desire for control over the provision of services; to set in place from a central agency the way services should be delivered. The changes outlined in the new Bill run contrary to the rule of law by reducing the civil liberties enmeshed in the present system. Judges, for instance, are no longer involved in consideration of legal aid grants to the Court of Appeal or in reviews of criminal legal aid grants. All reviews of legal aid are instead heard by a ministerially appointed panel.
We now see a recapturing of control by a centralised, fiscally driven, paternalistic, social democratic state (the great leap backwards). The implication of this shift is enormous, caught up with the apparent admission from government within the new Bill that community consultation and representation are too expensive to pursue, and making a lie of the current social service policy's focus of seeking community input.[8] Community input, it seems, is all very well as long as it is cheaper or easily controlled.
Peter Walker is a lecturer with Community and Family Studies at the University of Otago, Dunedin, New Zealand. In addition, he has extensive and ongoing experience with community organisations in Dunedin most notably the Dunedin Community Law Centre.
[1] Peters, M. and Marshall, J., 'Social Policy and the Move to "Community"', The April Report - Royal Commission on Social Policy, Volume III, Part II, Wellington, Government Printer, 1988, p.657.
[2] Turner, S., 'Community Law Centres', [1992] AltLawJl 132; (1992) 17(6) Alternative LawJournal 295-6.
[3] Advisory Committee on Legal Services, Te Whainga i te tika - In Search of Justice, Wellington, Department of Justice, Government Printer, 1986, p.7.
[4] Glanville, L., 'Can CLCs advocate for themselves?', (1999) 24(3) Alternative Law Journal154-6.
[5] Parliamentary Debates (Hansard), Weekly Hansard 85, 5 October 1999, Wellington, Government Printer: 19687-95, p.l9688.
[6] Parliamentary Debates (Hansard), above, p.l9688.
[7] Advisory Committee on Legal Services, above, p.7.
[8] Parliamentary Debates (Hansard), above, p.l9688.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/54.html