The ‘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.