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Legal aid funding for s 27 sentencing reports removed from 21 March 2024

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The Legal Services Amendment Act 2024 was passed under urgency on 6 March 2024 (calendar date), received the Royal assent on 7 March and comes into force on 21 March.

The Act removes legal aid funding for reports or statements under s 27 of the Sentencing Act 2002 (Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender). An amendment to s 99 of the Legal Services Act 2011 (Secretary to refer claim to Commissioner for decision) will require the Legal Services Commissioner to decline to pay for disbursements of this kind (new s 99(4)(ca)).

New provisions in sch 1AA of the Legal Services Act (Transitional, savings, and related provisions) will preserve the current legal aid position for disbursements of this kind that have been pre-approved (but not yet paid) prior to 21 March 2024. The operative provision is new cl 7:

7  Grant for disbursement approved but claim not determined before commencement of amendment Act

“(1)  This clause applies if, before commencement,—

        (a)  the lead provider has obtained the Commissioner’s approval to incur a disbursement [relating to s 27 of the Sentencing Act] as part of a grant of legal aid; but

        (b)  the Commissioner has not approved, deferred, or declined payment of a claim for payment in respect of legal aid services or specified legal services that includes the disbursement.

“(2)  The Commissioner must approve, defer, or decline payment of the claim as if section 99(4)(ca) had not been enacted.”

Note that this requires the Commissioner to have granted approval before 21 March, not simply that an application for approval has been submitted before then. (See New Zealand Parliament “Legal Services Amendment Bill — In Committee — Clause 5” <> for parliamentary debate on this point.)

Information about the Act and its background can be found in Legal Services (online ed, Thomson Reuters) at [CA1], [LA99.06A] and [LA106.02(2)].

By Kevin Leary

Kevin Leary is a Senior Legal Editor in the New Zealand Analytical Law team at Thomson Reuters. He has more than 20 years' experience as an editor of bound books, looseleafs, precedents and their digital equivalents.

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