Legal Services Commissioner

• The Bill establishes the position of Legal Services Commissioner who must be appointed under the State Sector Act 1988 to hold that office. That person must be an existing employee of the Ministry or be appointed an employee of the Ministry of Justice when appointed Commissioner. The Commissioner must, except in respect of the functions described in the next paragraph, act under the direction of the Minister of Justice and the Secretary for Justice.
• The Bill provides that the Commissioner has the following functions which must be exercised independently:
• to grant legal aid in accordance with this Act and the regulations;
• to determine legal aid repayments where legal aid is granted;
• to assign a provider of legal aid services or specified legal services to an aided person;
• in relation to salaried lawyers, to decide the allocation of cases among salaried lawyers, to oversee the conduct of legal proceedings conducted by salaried lawyers and to manage the performance of salaried lawyers; and
• to carry out any other function conferred on the Commissioner by the Minister, by the Secretary, or by or under this Act or any other enactment.
• The Legal Service Commissioner (the Commissioner) may delegate his or her powers (Part 3, Subpart 1, Clauses 70-73).

Proceedings for which legal aid may be granted

The Bill provides that legal aid may be granted respect of the following criminal matters:

• criminal proceedings in a District Court, a Youth Court, the High Court, the Court of Appeal, or the Supreme Court;
• appeals to the Judicial Committee of the Privy Council in criminal proceedings, where the Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of criminal legal aid is desirable in the public interest;
• proceedings before the New Zealand Parole Board under section 27, 65, or 107 of the Parole Act 2002 (which relate to postponement orders, recall orders, and orders under section 107 of that Act, respectively) and in the High Court on an application under section 68 of the Parole Act 2002 (which relates to appeals against postponement orders, section 107 orders, and final recall orders).

The Bill provides that legal aid may be granted in respect of certain civil matters including:

• civil proceedings in a District Court or a Family Court;
• civil proceedings in the High Court, the Court of Appeal, or the Supreme Court;
• appeals to the Judicial Committee of the Privy Council in civil proceedings in any case where the applicant has succeeded in the Court of Appeal and is the respondent in the appeal to the Privy Council, if the grant of aid is approved by the Minister or the Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of aid is desirable in the public interest;
• proceedings commenced by way of application in a Youth Court under Part 7 of the Children, Young Persons, and Their Families Act 1989 or in respect of any review of any determination of, or any order made in, a Youth Court in any such proceedings; and
• in any case where the Legal Services Commissioner considers that the case is one that requires legal representation (having regard to the nature of the proceedings and to the applicant's personal interest) and considers that the applicant would suffer substantial hardship if aid were not granted, certain proceedings in or before: the Māori Land Court; the Māori Appellate Court; the Employment Court; the Employment Relations Authority; or the Waitangi Tribunal, the Social Security Appeal Authority; the Tenancy Tribunal; "a body established under section 63(1)(a)(i) of the Housing Restructuring and Tenancy Matters Act 1992 to hear appeals under section 62 of that Act"; and certain proceedings before the Refugee Status Appeals Authority or in respect of the processing of claims for refugee status under the Immigration Act 1987 or other proceedings under that Act; all applications, submissions, and appeals under the Resource Management Act 1991 or to the Environment Court under any other Act; all applications, submissions, and appeals to any Council or body in any case where an appeal in relation to its decision lies to the Environment Court; proceedings before the tribunal under the Weathertight Homes Resolution Services Act 2006; proceedings before a Tribunal under subpart 2 of Part 2 of the Prisoners' and Victims' Claims Act 2005 in respect of 1 or more victims' claims under that subpart (Part 2, Subpart 1, Clauses 6 and 7).

When legal aid may be granted in criminal matters

The Commissioner may grant legal aid to an applicant in respect of proceedings in criminal matters (see Clause 6) where:

• the applicant is a natural person charged with or convicted of an offence; and
• it appears to the Commissioner that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and
• either the offence to which the application relates is punishable by a maximum term of imprisonment of six months or more or it appears to the Commissioner that the "interests of justice" require that the applicant be granted legal aid.

The Bill further provides that when considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner:

• must have regard to:
• whether the applicant has any previous conviction; and
• whether the applicant is charged with or convicted of an offence punishable by imprisonment; and
• whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and
• whether the proceedings involve a substantial question of law; and
• whether there are complex factual, legal, or evidential matters that require the determination of a court; and
• whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and
• in any proceeding to which Clause 6(c) (ie. parole matters) applies, the consequences for the applicant if legal aid is not granted; and
• in respect of an appeal, the grounds of the appeal; and
• may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant (Part 2, Subpart 1, Clause 8).

Prescribed offences

The Bill provides for applications for legal aid for a "prescribed offence". The Commissioner must, when determining whether the applicant has the means to pay for legal assistance, do so in the manner set out in regulations. This means a different test for determining the applicant's means will apply for prescribed offences where the cost of legal aid is below a certain amount but must determine or redetermine the cost under Clause 8 if it may exceed the prescribed maximum amount (Part 2, Subpart 1, Clause 9).

Application and grant

The Bill sets out how an application for legal aid must be made. In relation to the decision the Commissioner makes on an application for legal aid, the Bill does not change the current regime except that the Commissioner may grant legal aid on an interim basis until the Commissioner decides the application or considers that payments made under that grant should cease. The provisions in Clause 32 relating to the consequences of withdrawing legal aid apply to any payments that have ceased under a grant of legal aid made on an interim basis. A person whose application is declined may seek a review and he or she must be advised that they may do so (Part 2, Subpart 2, Clauses 14-23).

The operation of legal aid in particular cases

The current provisions relating to such things as: the obligation of the aided person to notify the Commissioner of any change in his or her circumstances (Clause 25); the process for applications to amend a grant of legal aid (Clause 28); the withdrawal of, or amendment to, a grant of legal aid in relation to a criminal matter (Clause 29) or civil matter (Clause 30); and the withdrawal, and consequences of a withdrawal, of a grant of legal aid by the Commissioner (Clauses 31 and 32) are largely carried over (Part 2, Subpart 3, Clauses 24-32).

Provisions carried over

The current provisions relating to the payment of legal aid, the ability to adjust the rate of legal aid debt, the power to charge property, and its enforcement and the ability to charge interest are also carried over (Part 2, Subpart 4, Clauses 33-44). The current provisions relating to the award of costs in civil proceedings are also generally carried over (Part 2, Subpart 5, Clauses 45 and 46) as are those relating to Treaty of Waitangi claims ((Part 2, Subpart 6, Clauses 47-49)

Legal Aid Tribunal

The Bill establishes this Tribunal (Part 2, Subpart 8, Clauses 62-67):

Quality assurance system for providers

The Bill prohibits a person from providing a legal aid service or specified legal service unless the person is approved to do so by the Secretary, and the person complies with the conditions (if any) of that approval. The Bill provides for Selection committees whose function is to assess applications for approval to provide legal aid services or specified legal services and to advise the Secretary of the suitability of those applicants. Such a committee is composed of a representative from the Ministry of Justice (who is the chairperson) and a lawyer nominated by the New Zealand Law Society. The Secretary must also establish a performance review committee to investigate and advise the Secretary of any matter relating to the performance of a provider. The Secretary may decline applications by a person to provide legal aid services to specified legal services or may revoke or modify a providers approval or impose conditions on approvals. The Bill establishes a review Authority (Part 3, Subpart 2, Clauses 74-92).

Community law centres

The Bill provides a new definition of a community law centre, which is a body whose function includes the provision of community legal services. Community legal services means any legal services or law reform and advocacy work that a community law centre provides under a contract between the centre and the Secretary (Part 3, Subpart 3, Clauses 93-96).

Payment for legal aid work, enforcement, and other matters relating to providers

The Bill generally carries over the provisions for payment of providers but, as a new provision, provides for regulations to be made to set a time frame for claims for payment. The Secretary is given the power to refer claims to the Legal services Commissioner. The Bill provides extensive powers of the Commissioner in relation to approving or declining claims or approving them in part. The Secretary is given powers to suspend payment of claims and, after a recommendation by the performance review committee,

• modify or cancel a person' approval to provide legal aid services or specified legal services;
• require that a provider be supervised by another provider approved by the Secretary;
• bar a person from applying for approval to provide legal aid services or specified legal services for any period of a duration that is between three months or two years.
• The Secretary must cancel a provider's approval if:
• the provider has made a false or misleading representation in any application for approval that has led to the approval being granted to that has led to the approval being granted on more favourable conditions than would otherwise have been imposed;
• the provider is convicted of an offence punishable by imprisonment;
• the provider takes unauthorised payments from a legally aided person in relation to a legal aid matter;
• the provider is no longer entitled to hold a practising certificate;
• the Disciplinary Tribunal has made an order under Section 242(1) of the Lawyers and Conveyancers Act 2006 striking a practitioner off the roll, suspending the practitioner from practice, or terminating the practitioner’s employment or prohibiting the practitioner from employment by any practitioner or incorporated firm (Part 3, Subpart 4, Clauses 97-107).