Promoting access to justice is the express purpose of the LSA 2011:

“3          Purpose of Act

The purpose of this Act is to promote access to justice by establishing a system that—

(a)         provides legal services to people of insufficient means; and

(b)         delivers those services in the most effective and efficient manner.”

The largest (though not the only) legal service established under the LSA 2011 is legal aid: see pt 2 of the Act. Legal aid is administered by the Ministry of Justice (MOJ) through the Secretary for Justice and the Legal Services Commissioner: see MOJ “Legal aid” <www.justice.govt.nz> (information for clients), MOJ “Legal aid lawyers” <www.justice.govt.nz> (information for private lawyers/advocates) and Public Defence Service <pds.govt.nz> (information about MOJ-employed lawyers providing (independent) criminal legal aid services).

With s 3 in mind, it may be asked whether the legal aid system is succeeding in promoting access to justice. In Chief Justice of New Zealand | Te Tumu Whakawā o Aotearoa Annual Report: For the period 1 January 2020 to 31 December 2021 (March 2022) <www.courtsofnz.govt.nz>, her Honour states in the introduction (at 3):

“Lack of legal representation is … another considerable barrier to access to justice. Many in our society cannot afford legal representation. The legal aid system is designed to assist those with limited means to afford legal representation when they are in legal need. That system has broken down, leading to increasing numbers of unrepresented before our courts and, we can be sure, many more who are unable to seek legal redress for wrongs.”

This is expanded on in the body of the report (at 41):

“THE PRESSING ISSUE OF LEGAL AID

A well-functioning democracy needs a fair, just and sustainable legal aid system to provide access to justice and to promote respect for the rule of law. New Zealand’s legal aid system is underfunded and some of its legislative and regulatory settings are creating their own barriers to access to the courts and legal representation. These deficiencies are causing the system to fail to meet its objectives of facilitating access to justice and upholding the rule of law.

There is a pressing need for investment in the legal aid system, so that legal aid is available to a wider range of people. For example the earnings threshold to access civil legal aid is less than $24,000 a year for a single person and less than $37,000 a year for a person who has one dependent. When this is compared to the adult minimum wage ($41,600 a year), this shows legal assistance is out of the reach of many. These thresholds, as well as the rates paid to legal aid providers, have not kept up with cost and wage inflation.

The hourly rate for lawyers has not increased since 2008 and fixed fees for criminal legal aid have not been adjusted since 2016. This has led to a reluctance on the part of lawyers to do work on legal aid and it is now often difficult for people to find lawyers prepared to represent them on legal aid.

Legal aid is generally granted as a loan which must be repaid. It is several years since the thresholds for such repayments were revised to take some account of inflation. Today a greater proportion of low-income people are now eligible to repay legal aid than when the system was set up.”

The following acknowledgement is added (at 41):

“Budget 2020 provided funding to Community Law Centres Aotearoa to set up a pro bono clearing house where lawyers willing to work for no charge are matched with people who need legal assistance. Called Te Ara Ture, this clearing house will meet the needs of some who would otherwise miss out on justice because they cannot afford representation and cannot get legal aid.”

(See Community Law <communitylaw.org.nz> and Te Ara Ture <www.tearature.co.nz>. Community law centres/community legal services are another component of the overall legal services system under the LSA 2011: see ss 69(d) and 93–96.)

So, while there has been recent funding to address legal representation issues by way of pro bono services (as a community legal service), legal aid services are “underfunded” and there are problems with “some of its legislative and regulatory settings”. In her Honour’s view, this is “causing the system to fail to meet its objectives of facilitating access to justice and upholding the rule of law”.

As evidenced by Helen Winkelmann “The New Zealand Law Foundation Ethel Benjamin Commemorative Address 2014: Access to Justice – Who Needs Lawyers?” (2014) 13 Otago LR 229, especially at 234–236, these concerns about the legal aid system are not new.

For more on the LSA 2011 and access to justice, see the commentary in Legal Services at [LA3.01] and following on Westlaw NZ.