More legal aid funding – which seems unlikely – cannot provide the whole answer to access to justice. We need to get creative about providing effective help without breaking the bank
Opinion: Most of us assume if someone runs into a legal problem and can’t afford to pay for a lawyer, then they will be able to get legal aid to do so. For civil justice problems – employment, tenancy, consumer, care of children, relationship property – this is far from the truth. Unless you are a beneficiary, then you are unlikely to qualify for such assistance.
Even if you do qualify, legal aid is usually a loan not a grant. Up until now, it has also been a loan with interest.
Unsurprisingly, many who are eligible for legal aid are reluctant to accept assistance as they contemplate not only the stress of the legal proceeding, but also potentially years of servicing the legal aid debt.
This year's Budget included some good news to improve the situation with a $190 million funding boost to maintain and strengthen the legal aid scheme. This is designed to relieve some of the pressure on a scheme that the chief justice has labelled broken and in danger of collapse.
The allocation in the Budget lifts the income threshold for access to legal aid, with the Ministry of Justice predicting this will make about 93,000 more people eligible to receive it.
The Budget also addresses the repayment issues. Legal aid remains a loan, but the means test that determines repayments has been adjusted. Previously, if you had no dependents, no capital, and you and your partner earned more than $23,004, you could be required to repay a legal aid loan, with interest.
This threshold has gone up by 16.5%, so the obligation to repay does not begin until your joint income is $26,800. There will also be no interest charged on the loan amount.
That is an improvement and helps relieve some of the system’s overall unfairness. However, it still means all but the very poorest of legal aid recipients will need to make repayments for the cost of accessing justice.
There is also a one-off 12 percent increase in hourly rates for legal aid lawyers, from July 1. This addresses the problem of lawyers refusing to offer legal aid services on the basis the amount paid for their work was too low.
A New Zealand Law Society survey last year demonstrated the extent of this problem, with three quarters of legal aid lawyers reporting that they have turned away people seeking legal assistance.
Lawyers crying foul over low pay is unlikely to stir much sympathy among the public, but keep in mind legal aid lawyers are not the glass tower-dwelling part of the profession. They are the lawyers in the neighbourhood law offices facing the same cost increases as the rest of us, while legal aid rates have remained static since 2008.
More lawyers being willing to do legal aid funded work is vital if ordinary people are to have the same sort of access to justice as the wealthy.
While these immediate improvements in the legal aid system are to be welcomed, the problems in the civil justice system run much deeper. Legal aid remains a system that helps only the poorest, leaving the better part of New Zealand in the ‘justice gap’, unable to pay for a lawyer but unable to access legal aid.
What can be done? More legal aid funding – on top of what has already been provided – seems unlikely. There are many pressures on the public purse and legal aid funding struggles to be seen as a priority issue. Even if more funding is forthcoming, it is likely to be prioritised for criminal cases, not civil. Additional solutions are therefore required.
A strategic means of doing this is to coordinate all the efforts that are taking place – government, non-government, academic – so we don’t duplicate work and we target resources where they are most needed.
To that end, there is a draft national strategy on access to justice – Wayfinding for Civil Justice – out for consultation. It aims to get everyone to agree on where the priorities should be so that we can stretch the resource we do have as far as possible.
What might those priorities be? One is looking closely at who is providing help for which problems and how that is funded. Lawyers are necessary and important. The failed experiment in the Family Court removing lawyers from many proceedings has shown that simply deleting legal representation from the equation can create additional cost (financial and otherwise).
But if funding individual cases by individual lawyers might not always be the most efficient way to assist, are there other models we could use? We also know not every problem needs a lawyer to be part of the solution, or that they are only needed for some limited assistance, not for running the whole case.
We need to figure out where lawyers have the most impact, and where other models may be effective and cheaper.
Another possibility is more sophisticated online tools that help people solve their problems. Our online help tends to inform people about the law but not guide them through the steps to applying that law and solving their problems.
There are some promising international examples, such as British Columbia’s “Solution Explorer”, that guide people through their legal rights in relation to a particular problem, and then generate practical solutions such as a letter to send to the other party.
We know not everyone has the access or skills to use such tools, but such innovations can provide ‘help for the helpers’, not just the person with the problem, alleviating the need for the lawyer assistance that is in such short supply.
Properly funding legal aid is vital to maintaining the rule of law – without access to the courts, laws are just on the books but don’t operate in real life.
But in a society where legal problems are a common occurrence, legal aid cannot provide the whole answer. We need to get creative about providing effective help without breaking the bank.
