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Margaret Bazley’s attacks on legal aid

November 30th, 2009

legal aidThe ‘gone by lunchtime’ response to legal aid that the Key government has chosen to adopt in the wake of Margaret Bazley report needs to be stopped – and not only because Bazley has been willing to make sweeping condemnations of the lawyers involved, while being so short on actual evidence. The report is desperately thin on providing the data to back up its claims – much less on exploring how and why the situations it takes on faith, may have come to pass.

The report names no names. Its reliance on hearsay hasn’t stopped Bazley from accusing some 80% of the lawyers operating out of the Manakau District Court of engaging in unprofessional to fraudulent behaviour, and some 200 lawyers in all nationwide. These conclusions are based on a barrage of gossip and second or third hand accounts from police, clerks, defendants and other lawyers that she seems to have accepted on a “where there’s smoke, there’s fire” basis.

The result of this kangaroo court is not only to cast a slur on those people who – whatever the failings of some may be – are trying to make an ill-funded situation work adequately. The structural solution being rushed into place this morning by Justice Minister Simon Power seems aimed at ending the independence of the Legal Aid Services agency and folding it back into the Ministry of Justice.

Lets see how that overt politicisation of legal aid funding might have worked out in the recent past. Take a case with major political ramifications, like the Ahmed Zaoui case. The Justice Ministry funds the Crown Law Office that was managing the case against Zaoui, and – if Power has its way – the same department would in future be running Legal Aid Services as well. With voices in Parliament and on talkback radio howling about the expense of such cases, what better way to have cut Zaoui’s defence off at the knees than to have declined legal aid to his defence team – even though his lawyers were conducting Zaoui’s defence for years at bargain basement rates compared to the compensation levels being charged by the rest of the profession, including the Crown Law Office team. If Bazley is really worried about corruption of the system, here’s a prime source of risk: the overt politicization of legal aid that Power is about to enact.

What Bazley’s report is validating is the evisceration of independent legal aid for people that the government seeks to prosecute. Sure, the Bazley report also contains weasel passages about the need for defendants to have experienced and skilled counsel available in court to ensure a properly briefed and mounted defence – but this would mean a massive infusion of funds to hire such people for legal aid work, and extra funding for legal aid to that level is not on the agenda.

Currently, if legal aid looks like it is being run on a shoestring at times, that’s because it is being run on a shoestring. There’s a reason why for instance, some lawyers are running the defence of accused persons who they have met for the first time on the very morning of the trial : because in some cases, that’s all that the funding arrangements make possible. Paying peanuts produces monkey-like behaviour among some – and quite heroic attempts by others to make the system work, despite the indifference of government to funding anything more than the barest minimum forms of due process.

That’s true within the health system, in education and in the justice system. It is especially true of Manakau Direct Court. Is there any criticism emerging from the Maori Party about the Bazley report’s likely impact on Maori defendants coming before the court in Manakau? No, didn’t think so.

The fact is, the independence of Legal Aid Services exists for a reason – because the government shouldn’t hold the financial reins on the defence team of the people it is prosecuting. The answer is adequate funding, at a distance from political manipulation. f this sort of thing was happening in the business sector the Commerce Commission would be launching a prosecution – because of the clear danger of monopoly justice fixing. What we needed was a truly professional report on legal aid that was willing and able to explore ways to improve the system. All we have got instead is a litany of blame aimed at those near at the bottom of the cliff – some of whom may be rorting the system, but all of whom are working within a makeshift attempt at providing the basics of due process.


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    1. 9 Responses to “Margaret Bazley’s attacks on legal aid”

    2. By Alan Scheflin on Nov 30, 2009 | Reply

      The Simon Power End Justice campaign.

      He wants to turn the Legal Aid Services agency into yet another bureaucratic sink hole to be completely CONTROLLED by the Ministry of Justice.
      Isn’t that an (attempted) hostile takeover of Legal Aid services agency.
      Business as usual.
      The business of taking over Justice?

      The Law Commission are funded to investigate and deal with the misconduct and practice of NZ solicitors,so the Law Commission can do their jobs if this Mrs Bazley found there are cases for corruption charges for 80% solicitors in Manakau District.They can make money off collecting the alleged misappropriated public funds back, so why aren’t they concerned with this?
      *These kinds of “public reports” should be only be used to read to your small children to get them to sleep or for emergency toilet paper.

    3. By mike on Nov 30, 2009 | Reply

      Incredible really how such a report can even reach a conclusion, let alone make recommendations.

      I would like to see a complementary inquiry into how NZ tax lawyers and accountants create various rorts, trusts, and nested ownership structures that defraud society of tax revenue for the benefit of their rich clients.

      As the recent decisions on banking tax avoidance show, the amounts of money are far larger.

    4. By Steven Zindel on Nov 30, 2009 | Reply

      Very true. It’s easy to take potshots on the basis of anecdotal reports. The system is creaky and overworked; yet it’s the lawyers who get the blame. Reduce the red tape and perverse incentives. Allow graduates to work on cases under supervision without going through artificial hurdles. Institute rigorous auditing of time recording and the few bad eggs among the lawyers may be ejected. For the rest of us in the sector, we’re doing our best to contribute to the elusive goal of justice.

    5. By Alan Scheflin on Nov 30, 2009 | Reply

      Mike you don’t want to pay to see a complimentary inquiry like this one into anything EVER.
      The stunning complete lack of evidence and crazy recommendations would have us all give the Banks actively avoiding paying taxes big fat bonuses just for their “zealous” unaccountable accountants.
      So great now we have this new system in place at LSA to work up all the Treaty Claims Legal aid.
      It will be big $$$$ to account for.
      And accountants are like magicians they figuratively saw people in half and literally make funds appear and disappear at will.
      “The Magic LSA “.

    6. By Ann on Nov 30, 2009 | Reply

      It seems that our democracy is at sea when every second government overturns all the good policies and practices that a previous government put in place, and doesn’t seem to understand the principles on which they were based. It is very costly to the citizens and brings government into disrepute as being a sham. I think that politicians should have a fidelity fund like lawyers. Then every time one initiates new legislation, or vastly diminishes current services, they would have to invest some of their salary into an amelioration account to be called on when the damaging effects of their work kick in.

    7. By Bob on Dec 1, 2009 | Reply

      The key point in all of this is the word evidence
      somewhere we must have some hard honest
      facts to support all the hearsay
      She may wish for all the private prisons to be
      filled but in our society please make those
      who are in there truely guilty

    8. By mike on Dec 1, 2009 | Reply

      Alan, guess there’s always exploitation of the system.

      Suppose I was just trying to point out is that some areas of legal practice, like defending people at the bottom of the ladder, seem to always be political fair game, why elsewhere its “business as usual”.

    9. By Alan Scheflin on Dec 1, 2009 | Reply

      Mike I was just emphasizing the nature of this report I agreed with you.
      We don’t need more fabricated inquiries & reports which lack any substance, while emotively preying on the existing state of inequality just to administer more social injustice.

    10. By JohnS on Dec 2, 2009 | Reply

      Excellent analysis, and in contrast to most journalists’ who have taken all the criticisms in the report at unquestioning face value.

      By the way, “Manukau”.

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