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Anyone . . . who needs legal services should have access to them, regardless of financial, communication, or physical barriers. To deny access to legal services is to deny at the outset access to the law. To deny access to the law is to deny justice, and to deny justice to some, is to threaten the integrity of all.
(Justice Rosalie Abella, 1983)
398 MUCH OF WHAT WOMEN said about the barriers to their access to legal
information, advice and representation services highlights the limited accessibility of many of the services. The reasons for this include inadequate information about the existence and nature of services, the uneven geographic distribution of services, the limited supply of certain types of services, and the cost of private lawyers’ services.
399 The Legal Services Act 1991 established a framework to redress the imbalance in New Zealanders’ access to legal services. It provided processes by which to identify and to meet legal needs in communities – by means of legal information, law-related education and the establishment of community-based legal services. The result ought to have been both an improvement in the range of information on which New Zealanders can make choices about their use of the justice system and a diversification of the legal services available.
400 There are, however, a number of inter-related issues concerning the Act and its administration which impact on its effectiveness in meeting the diverse needs of women identified by this study. In this chapter those issues are discussed and ways of increasing choice and flexibility in legal services delivery are explored. The ideal is to achieve a seamless market for legal services, with maximum choice and points of entry, a full range of available services, and a diversity of providers – from generalists (such as citizens advice bureaux), to specialists (such as women’s refuges), to targeted providers (such as community law centres and private lawyers) – each of whom acknowledges the validity of the others’ contribution. At the conclusion of this chapter a package of changes is recommended to improve the capacity of the Legal Services Act to achieve its objective of meeting legal needs in communities.
Background
401 The fragmented nature of legal services in New Zealand was recognised in the late 1970s, when the first community law centre and the duty solicitor scheme had been established and legal advice was being provided by voluntary advisers at citizens advice bureaux. The 1978 report of the Royal Commission on the Courts (the Beattie Report), in commenting on the legal aid scheme, noted the view of the New Zealand Law Society that the various schemes, with the possible exception of free legal advice bureaux run by district law societies, should be brought together under one legal aid system. (Beattie et al 1978, 289)
402 Following the Beattie Report, the Working Party on Access to the Law was established to review government-assisted and community-based legal services in New Zealand. The Working Party’s two reports, published in 1982 and 1983 respectively, established the framework for the integrated approach which was eventually reflected in the Legal Services Act 1991. The development of the legislation was also influenced, although to a lesser extent, by the report of a ministerial advisory committee, Te Whainga i Te Tika: In Search of Justice, which was published in 1986.
Legal Services Board
403 The Legal Services Act 1991 addressed the fragmentation of legal services in New Zealand by bringing the civil and criminal legal aid schemes under a single umbrella, and providing both an institutional structure and a source of funding for the provision of legal services outside the private lawyers’ market. The focal point of the structure is the Legal Services Board. Among its responsibilities, it must:
• assist in establishing community law centres, and fund them;
• advise on the provision of legal information and law-related education[20] to the public, and fund it;
• sponsor and initiate research on the provision of legal services in New Zealand; and
• sponsor and evaluate pilot schemes for providing legal services to the public. (s 95(1)(e)–(h) Legal Services Act 1991)
District legal services committees
404 The main bodies which the Legal Services Board “assists” and “advises” in relation to community law centres and law-related education are the 19 district legal services committees around the country. The committees have complementary functions to those of the board and so are responsible, for example, for:
• identifying unmet needs for legal services in their districts;
• establishing and monitoring community law centres; and
• allocating funding for local legal information and law-related education initiatives. (s115)
Membership
405 Both the board and the district committees have members appointed by the Minister of Justice on the nomination of:
• district law societies;
• the Ministers of Consumer Affairs and Women’s Affairs; and
• the Minister of Mäori Affairs.
One member of the board is appointed to represent the interests of community law centres. In each district with one or more community law centres, one member of the district committee is appointed to represent its, or their, interests. (ss 98 and 117)
Vision
406 The board’s vision is to ensure that by the year 2001:
Every New Zealander will be able to know where and how to get legal services by accessing information services provided by, or funded by, the Legal Services Board. (Statement of Intent for the period 1 July 1998 to 30 June 2001, 1)
Among the board’s aims are:
• to provide quality, cost-effective access to legal representation and to knowledge which empowers people; and
• to assess needs and match those needs to appropriate legal services. (Statement of Intent, 2)
Funding
407 The administrative costs of the Legal Services Board and the district committees are met by the taxpayer, by appropriation through Vote: Justice. Their legal information and law-related education initiatives, and the board’s research and pilot schemes, are funded from interest accumulated on funds held in solicitors’ trust accounts. Half of that interest must be paid by banks into the Law Society Special Fund set up under the Law Practitioners Act 1982. The other half is retained by banks in lieu of banking charges and fees. (Law Practitioners Act, ss 91L(5) and 91M(1))
408 The Legal Services Board has first claim on the money in the Special Fund, for the funding of community law centres. Any remainder is divided equally between the board (for law-related education, pilot schemes and research purposes) and the New Zealand Law Foundation, an independent trust established by the New Zealand Law Society. (Law Practitioners Act, s 91F; Legal Services Act, s 95(1)(e)) The board itself funds law-related education on a national basis. It also allocates funds to district legal services committees for use in their districts. The committees may in turn allocate funds for legal information or law-related education to community organisations, including law centres (in addition to the centres’ core funding allocated by the board).
Community law centres
409 The Legal Services Act recognises the role of community law centres which, although community organisations in their own right, may be established by district legal services committees with the consent of, and by means of funding from, the board. (s 115(c) and (e)(ii); s 154) The functions of law centres are described as including:
• the provision of legal advice and legal information to the public or any section of the public;
• the promotion of law-related education for the public or any section of the public; and
• such other functions as each community law centre considers necessary to ensure that the needs of the public for legal services are met. (s 155(a)–(d))
Partnership with the community
410 The Ministry of Justice, in its submission on the consultation paper Women’s Access to Legal Information (NZLC MP4), emphasised the need for community initiatives and responsibility concerning the provision of legal information. History shows the way in which communities have responded to legal information needs – for example, through the growth of the citizens advice bureaux and other generalist and specialist providers (see chapter 5). But of equal significance is the way in which public institutions interact with communities by providing funding and other assistance.
411 It was always envisaged that the work of the Legal Services Board in relation to legal services matters (including law-related education and legal information, as well as the establishment and funding of community law centres) would be undertaken in partnership with the community. In discussing the need for community law centres, the 1981 discussion paper Access to the Law stated:
The basic notion behind community law services is to cater for the legal needs of citizens which are not otherwise being adequately dealt with, either in terms of quantity or quality . . . . It is most important to recognise that “unmet legal need” is a variable concept that must be defined in a local context and by the local community. (Access to the Law 1981, 187)
412 This approach was confirmed in the two reports of the Working Party on Access to the Law in 1982 and 1983, which proposed the formation of a Legal Services Board whose functions would include that of general oversight of community-based legal services in New Zealand. (Final Report, Working Party on Access to the Law, 1983, 5–6)[21] The proposal was consistent with the emerging theory of community law centres as organisations designed to complement the traditional model of legal aid administered by the legal profession. (See, for example, Zemans, 1996) As explained by one commentator in 1992:
Community law centres are operated for a community, by a community, to bring about change in or benefit to a community . . . They are responsible to and provide their services for a specific community . . . Ideally the establishment of community legal services arises from the initiative of the community itself and on-going community control is paramount. (Becroft, 1992)
413 Although the Long Title to the Legal Services Act is silent in respect of these issues, Part V of the Act recognises this philosophy and the partnership approach. It requires each district legal services committee regularly to assess the need for legal services in its district with a view to establishing community law centres. It also requires consultation with the community in the area to be served “to ensure that the establishment of that community law centre is in accordance with the wishes of that community (so far as they can be ascertained)”. (s 154(2)) Further, as has been noted, s 155, while prescribing the range of functions of community law centres, recognises the autonomy of a centre to perform “such other functions as each community law centre considers necessary to ensure that the needs of the public that it serves for legal services are met”. (s 155(d))
414 This type of model is well suited to the delivery of legal services, including legal information and law-related education, to and for the various communities to which New Zealand women belong. It is consistent with the emphasis placed by recent governments on active participation by individuals, families and communities in New Zealand’s economic, social and cultural development. (See, for example, SRA 5, Strategic Result Areas for the Public Sector 1997–2000, June 1997) It recognises the appropriateness of government agencies, as well as local government, providing funding and, in some cases, services to communities for the meeting of legal information and education needs. The Legal Services Board itself has said:
The provision of legal services from within the community is an evolutionary process which the Board believes will develop in strength and experience through time. (Review of the Legal Services Act 1991 (pursuant to s 112 of the Legal Services Act), Legal Services Board, 1995, 6)
The role of the legal profession
415 The legal profession has long assumed a responsibility for ensuring that legal services and information are available to the public. This is reflected in the current functions of the New Zealand Law Society, and the 14 district law societies, to:
• “publish or arrange for the publication” of pamphlets and other material for the benefit of the public; and
• establish, fund or operate community law centres. (Law Practitioners Act 1982, ss 5(2)(b) and 6)
416 The societies’ activities in these areas have been substantial over the years. They played a major part in the establishment, funding and operation of community law centres in Auckland and Wellington during the 1970s and 1980s. The societies’ role has diminished since the Legal Services Act was passed, but hundreds of their members provide voluntary services to community law centres by, for example, participating in free legal advice sessions, responding to telephone inquiries from law centre staff and serving on the centres’ management committees. In addition, the Auckland District Law Society levies each of its members $50 a year to support the work of law centres in the area.
417 Other initiatives by the legal profession, such as the New Zealand Law Society’s Law Awareness pamphlet series, the publication of legal services directories by the Auckland and Wellington District Law Societies, and occasional ventures such as Law Week and Mediation Week, continue to have a large impact. The Law in Schools programme has been run by the New Zealand Law Society for 10 years now, with great success. To further the aims of the new social studies curriculum, the society, with funding assistance from the Legal Services Board, has recently produced a Living with the Law kit to be used in the teaching of third and fourth form students. It has also produced a kit for form one and two students and, with the Commercial Education Teachers Association, a “Legal Studies Curriculum” for senior school students.
418 Much of the work which goes into these initiatives is voluntary on the part of the law societies’ members. It is a form of community participation and should be recognised as such. It seems likely, and is certainly to be hoped, that members of the profession will continue to devote time and expertise to activities which support the objective of making appropriate legal services available in the community.
419 The New Zealand Law Foundation has already been mentioned. It is empowered by the Law Practitioners Act to use money from the Law Society Special Fund for its activities. The Law Foundation’s role overlaps with that of the Legal Services Board and includes the provision of legal education to members of the public. The foundation also funds law libraries, the Council of Legal Education, and legal research. (See further NZLC MP4, paras 57 to 59)
420 Inevitably, the potential of the new regime established by the 1991 Act, embracing both legal aid and other legal services, depends on the extent to which those two major components can be integrated to best meet the contemporary needs of New Zealanders. The goodwill and effort of all groups and agencies involved in providing legal services in the community and under the legal aid scheme deserve warm recognition, as does the daily contribution of the many individuals who give their time – for reduced or no financial reward – in creating information and resource materials, giving advice, assisting people in times of need, and actively administering criminal and civil legal aid. A survey of overseas literature confirms the forward-looking nature of the 1991 reforms. The creation of a single umbrella for legal aid and other forms of legal service (including information, education and community provision) is still awaited in other jurisdictions. (See, for example, Cousins 1996; Blankenburg 1996)
421 In 1991, the fledgling state of some legal services other than legal aid made it plain that time would be needed for them to develop to a point where they could be relied upon to play their part in any overall plan to reduce unmet legal needs. This study has provided a useful test for the reforms and, together with the formal reviews carried out by the Legal Services Board itself, has stepped up the pace of the evolution. But complacency is dangerous. From what has been learned in the study – including from discussions with the Legal Services Board, the New Zealand Law Society, community law centres and others – seven systemic defects have been identified, some of them interlinked, which hinder the meeting of legal needs in the community. Under the terms of reference, these are capable of being addressed by the adoption of appropriate strategies or specific law reforms. The defects are:
• continuing fragmentation and lack of co-ordination in legal services provision;
• the lack of secure long-term funding for community-based legal services;
• inadequate resourcing of the Legal Services Board (in respect of its co-ordinating and oversight role) and the district legal services committees (including defects in the process of appointing members);
• inadequate systems to identify gaps in legal services for communities of interest as opposed to geographical communities;
• a lack of flexibility in the power of the board and district committees to respond to unmet legal needs;
• inadequate provision for the ongoing monitoring of legal services needs in a community; and
• conflict between s 6 of the Law Practitioners Act and ss 154 and 155 of the Legal Services Act, which creates an unnecessary barrier to the ability of community law centres to respond to unmet legal needs.
Fragmentation
422 The consultation paper Women’s Access to Legal Information (NZLC MP4) emphasised the importance of liaison and co-ordination between those who fund, produce and distribute legal information. It noted criticism by many women of the tendency of government agencies, because of the way they are structured, to separate problems into legal, financial, health and other categories. This fragmentation does not necessarily reflect the way in which women experience problems which require assistance.
423 This criticism is by no means new. Nor is it limited to the comparatively small area of legal information and law-related education. It is a reflection of the different funding sources in that area, as well as the nature of the government’s own infrastructure. There is now widespread recognition of the inefficiencies fragmentation can cause, particularly in the social services area. The “strengthening families” project of recent governments is a current example of an attempt to cross “sectoral” boundaries and provide a co-ordinated approach to the delivery of social services to families in need.
424 There are similar problems in respect of the provision of legal services at community level. The discussion in chapter 5 noted the wide diversity of community groups which, to one degree or another, intermingle the provision of legal information with other services. The Legal Services Act network reaches those groups in only a very limited way, and the resulting inefficiencies contribute to the problems women encounter in obtaining legal information. There is a need to integrate the work of citizens advice bureaux, and specialist groups such as women’s refuges with the work of the agencies under the Legal Services Board umbrella. Currently, these community groups have no structured or formal input to the work of the board or the district committees.
425 There is also a need for better co-ordination of the legal information initiatives of the various state, private and not-for-profit sector agencies which are variously involved as funders, producers and distributors of information. The National Association of Citizens Advice Bureaux has advised, for example, that the bureaux, which have a major role in the distribution of legal information but which suffer from a lack of secure funding, can be left to pick up the demand which results from:
• information and awareness campaigns being mounted by other agencies without sufficient thought for recipients’ follow-up information needs (in particular the need for face-to-face help); and
• the reduction or withdrawal of information services by other agencies, including some government agencies.[22]
426 In a draft issues paper prepared in June 1997, the CAB proposed a co-ordinated approach to developing a “community information infrastructure”. This would require attention by central and local government agencies as well as community organisations. This view was echoed in a number of submissions on the legal information consultation paper.
Security of funding
427 Funding is a related issue. The Legal Services Board is by no means the only funder of legal information and advisory services. The CAB, for example, receives no core funding from the Legal Services Board. Such central government funds as it receives come from the Department of Social Welfare and from funds administered by the Department of Internal Affairs. Individual bureaux receive varying amounts of financial support each year from local government and other sponsors.
428 Adequacy of funds is also a problem for other community organisations which distribute information and give advice. Community law centres around the country made the following comments in submissions to this study:
“[We should be doing] outreach work in the wider community, [but cannot] due to lack of manpower and transport.” – Submission 502
“[We should be providing] mediation in disputes . . . training for other community workers . . . assistance with law reform.” – Submission 501
“[We should be providing] employment tribunal representation [and representation in] domestic protection proceedings.” – Submission 500
“[We should be providing] a mobile service.” – Submission 499
“[We should be providing] a specialist family law evening.” – Submission 253
“[We should be providing] more education and more hands on support with disadvantaged groups.” – Submission 497
“There will never be enough money to meet the unmet legal needs of our community.” – Submission 498
429 There is a particular concern about the longer-term viability of the Law Society Special Fund, which is, under the Legal Services Act, the existing source of funding for community law centres, legal information and law-related education, pilot schemes and research. The Fund has performed adequately to date, but a study commissioned by the board in 1996 indicated that, in the longer term, even moderately conservative community law centre development, combined with likely fluctuations in interest rates, could rapidly render it inadequate even to fund law centres, which are the first priority for its application. (NZIER 1996) That would leave nothing for the New Zealand Law Foundation or the law-related education and other functions of the board and its district committees.
430 The board has taken a conservative approach to the use of Special Fund money and has, as a result, accumulated a large reserve fund: $12.36 million as at 31 October 1998. In past years, the interest on the reserve fund has sponsored the law-related education and other “second priority” functions of the board. Since this study began, the board has increased its activities in relation to community law centre development, law-related education, pilot projects and research. The recent sharp decline in interest rates means that the monthly amounts now being paid from the Special Fund to the board have diminished to such an extent that its reserve fund, not merely the interest on it, is very likely to be needed this year to sponsor the “second priority” initiatives for which the board has statutory responsibility. If that situation continues, it could well produce, in the next few years, the result forecast by the New Zealand Institute of Economic Research.
431 There is a more fundamental question still about the long-term security of the Special Fund. Prompted by concern over the Conveyancers Bill (which will allow conveyancing to be done by non-lawyers), the New Zealand Law Society has recently proposed to the Minister of Justice that the Fidelity Fund (for losses caused by solicitors’ defalcations) should have first call on the Special Fund, in the sum of some $2 million annually. This reflects the view expressed in a 1997 report on the purposes, functions and structure of law societies in New Zealand. It was stated there that the distribution of interest on trust accounts to the Legal Services Board and the Law Foundation for the meeting of “social objectives” is an expropriation for which there is no justification, no matter how worthy those objectives are. (E-DEC Final Report, 12) Inevitably, the Law Society’s proposal would demote all of the purposes now served by the Special Fund: community law centres, law-related education, pilot schemes and research (under s 95(1)(e) of the Legal Services Act), and the Law Foundation (under s 91F of the Law Practitioners Act). In light of the existing pressures on the Fund, the proposal represents an added threat to the security of funding for community-based legal services in New Zealand.
432 The government has not yet taken a position on the matter. Meanwhile, it is plain that security of funding for the purposes listed in s 95(1)(e) of the Legal Services Act, including community law centres and law-related education, is essential. Should the Special Fund be so depleted that it cannot meet communities’ proven needs for legal services, other sources of funding will be required.
Resources and appointment procedures
433 Giving effect to the Legal Services Act requires a strategic, planned approach to meeting the ideal of equal access to the justice system. The roles of the Legal Services Board as the co-ordinating and funding body, and the district committees in the identification and meeting of needs, are critically important. Sufficient resources and appropriately qualified personnel are essential.
434 Staff resources have been a problem for the board for some time. It has a staff ceiling of 10 to attend to not only its functions under s 95(1)(e) of the Act but also those in respect of the civil and criminal legal aid schemes, the duty solicitor schemes, and the ongoing review of the Act itself under s 112. In fact, the board has rarely employed 10 staff. In February 1999 it had six employees, three of whom were fully involved with financial matters relating to the legal aid schemes. Most of the board’s effort and resources since its establishment have been devoted to the modernisation of legal aid. It has acknowledged that its broader legal services functions have of necessity suffered. Recently, in order to remain within its state-funded administrative budget and yet maintain the development of legal services other than legal aid, the board has employed suitably skilled workers on contract so that they may be paid from the reserve fund accumulated from the annual allocations made from the Special Fund.
435 Resources are also a problem for district legal services committees, whose part-time members operate with very limited administrative support. Moreover, some of the committees have had to cope with delays in the appointment of members who are there to represent community interests (especially those appointed to represent the interests of community law centres, or on the nominations of the Ministers of Consumer Affairs, Women’s Affairs and Mäori Affairs). The project team surveyed district committees about the extent to which delays in appointment had caused problems. Many committees reported delays, and five said that the delays had impacted on their operation. Communications with the Legal Services Board in February 1999 indicate that many committees are short of members, to the point where some are having difficulty obtaining a quorum at meetings, and that some of the vacancies are up to a year old.
436 The appointment process itself has also come under criticism. Appointments to the district committees are handled administratively by officials of the Ministry of Justice. The process of nominating people to represent the interests of women, consumers and Mäori is dealt with by officials of the relevant ministries. It is widely acknowledged to lack transparency; there is no formal process for consulting interested people or organisations, or for establishing a pool of candidates. This has been criticised both by the board itself in its 1995 Annual report and s 112 Review, and by the Justice and Law Reform Select Committee in its 1995/96 review of the performance and operations of the Board.
437 As one district committee commented in the course of this study, a formal, publicly transparent appointment structure which targeted appropriate community organisations would assist the effective functioning of committees, speed up the process, and make such appointments more deliberate and focused on identifying community needs. This would also facilitate the appointment to committees of people with links to other key community groups in a district – for example, the citizens advice bureaux. It appears that nominating agencies are aware of the need to enhance the representation of relevant community interests on district committees, and there are now more non-lawyers on committees than there were in the past. There has also been an increase recently in the number of non-lawyers and women who are presiding officers of district committees. However, the recent changes are no substitute for formal, publicly transparent appointment processes. These could be developed and implemented without the need for legislative change.
Communities of interest
438 District committees have the role of assessing the legal needs of their communities. It has long been recognised that a “community” need not be defined solely in geographical terms. The term “community of interest” provides the wider understanding. Community law centres already exist in New Zealand to serve such groups: for example, Nga Kaiwhakamarama I Nga Ture (the New Zealand Mäori Legal Service, based in Wellington but with a national as well as a local focus) and Youth Law (based in Auckland).
439 Many groups of women consulted in this study could be described as forming communities of interest: in particular, Mäori women, Pacific Islands women, disabled women, and lesbians. All have particular needs in respect of legal services, aspects of which appear from chapter 3 and in the quotes presented throughout this study. In some respects, of course, their needs do not exist only because they are women. Language and cultural barriers, and physical and geographic barriers, for example, exist for both men and women. The compounding effects of gender distinctions may be more or less influential in different circumstances.
440 The assessment of community legal needs under the Legal Services Act assumes communities of a geographical nature, or at least that people who are part of a wider community of interest will be present in sufficient numbers in each district to enable their needs to be identified adequately. However, there is no basis to either assumption. The Act has no mechanism for the wider interests to be met. It is perhaps significant that both the Mäori Legal Service and Youth Law existed before 1991. Since that time, no community law centre has been formed specifically to represent a wider community of interest.
441 The need is particularly acute in respect of Pacific Islanders, especially (but not only) in Auckland. The consultation with Pacific Islands women revealed substantial unmet need, to the extent that one Otahuhu law firm provides free legal advice to clients for a half day each week. There may be a case for a Pacific Islands law centre to be established within the Auckland Legal Services District, or on a wider or national basis. It seems inappropriate, however, that one district legal services committee (for example, that in Auckland) should be required to assess the needs of a community which reaches beyond the boundaries of its district. There is no reason in principle why the Legal Services Board should not exercise that role, although cost and practical difficulty would inevitably arise.
Inflexibility of response
442 As noted in para 413, the Act is premised on the establishment of community law centres as a means of meeting legal needs identified by district legal services committees under s 154. Nine law centres in existence before 1991 were, in effect, deemed by the board to have been re-established in terms of the Act. Ten more centres have been established since. In the result, not every district has a law centre and, in the districts without one, the Act’s requirement of a two yearly needs assessment has not always been met. Further, there has been some variation in the quality of the needs assessments undertaken. In response, the Legal Services Board is now providing additional assistance to district committees in the needs assessment process. However, a district which already has at least one law centre may find the board reluctant to agree to the establishment and funding of a further centre in that district until it is assured that districts without law centres are adequately serviced or well advanced towards developing services to meet legal needs.
443 Communications with the board make plain that it believes community law centres are now well-established as a useful and viable means of delivering cost-effective and low cost services. Its latest annual report confirms that:
The board is satisfied with the quality of service being offered by law centres which represents, with few exceptions, very fair value for the money invested in them. (Legal Services Board Annual Report 1998, 16)
444 Law centres are a visible focus for the provision of legal information, education and advice services at community level. Many operate as something of a hub for other community groups (such as women’s refuges) which have contacts with the legal system. It is not uncommon for law centres to engage in their own outreach work – for example, by providing legal advice sessions in prisons, schools and centres for the elderly. Law centres provide the closest example of the “one-stop-shop” model for community legal services that was warmly endorsed by many women who attended the consultation meetings. It may be noted too that a recent report on law centres, written by an Auckland barrister after a three-week inquiry commissioned by the Minister of Justice, concludes that of the 12 centres visited, “the great majority . . . are both effective and efficient in delivering to their clients and sections of the public access to justice”. (Knight, June 1998, 1)
445 That report expressed some criticism of what it described as the “cause-driven” rather than “needs-driven” nature of the activities pursued by some centres under s 155(d) of the Act. That is the provision which recognises the autonomy of each centre to perform “such other functions as [it] considers necessary to ensure that the needs of the public for legal services are met”. However, a degree of autonomy in the centres’ functions can be regarded as a vital asset in a justice system which, by its nature, might otherwise overlook issues or problems of particular concern to the most vulnerable New Zealanders. Law centres are uniquely placed both to detect features of the law or its administration which impact adversely on their communities and to take action designed to stimulate change – for example, by making submissions to relevant authorities, or by recommending or taking a test case in which the centre’s accumulated knowledge of a problem can be built into the arguments put before the court. That latter function is of particular importance when alternative means of promoting public-interest litigation are not well developed in the justice system.
446 In that regard, it is notable that about a third of Australian law centres are specialist centres which focus on such areas as women’s employment, tenants’ protection, immigration and domestic violence. In addition, there is a public-interest advocacy centre which acts as a “clearing-house” for test cases brought to its attention. The specialist centres’ in-depth knowledge both of particular legal issues and the “communities” most affected by them, is sought to be shared with the more generalist (geographically based) centres. In addition, their knowledge is recognised as valuable for promoting compliance with human rights standards by means of test cases on issues which are otherwise unlikely to be brought to the attention of appellate courts. (See further Legal Action Group, 1992, chapter 10)
447 It was observed in chapter 3 earlier that the legal issues of particular concern to groups of New Zealand women are not uniform. Mäori women, for example, emphasised their need for quality legal services in connection with Mäori land and environmental issues; Pacific Islands women emphasised their need for quality services in connection with immigration problems; lesbians emphasised their need for quality services in connection with gaps in the law relating to same-sex partners, including property settlements and family matters. These examples serve to highlight that efforts to address the needs of minority groups may lead to their being labelled unfairly as “cause-driven”, especially when the need for law reform may underlie the need for services.
448 The concerns about law centres which this study highlights derive, first, from the evidence that some are not as visible as they might be among people within their target client groups. Second, community law centres are predominantly creatures of large urban centres, and this limits their accessibility. Third, despite the availability of funding from the Legal Services Board, many law centres struggle to meet the demand for services. Because of their limited resources, they find it difficult to recruit suitably qualified and experienced staff.
449 It is unrealistic to expect community law centres to meet all the needs of a community (geographical or otherwise) for legal services. The fact that they do not is evidenced by the example given in para 441 above concerning Pacific Islands clients. In rural areas or in small communities, different approaches are needed. In chapter 5, two recent initiatives of the Legal Services Board were mentioned:
• the establishment of the pilot project in the Northland area, Te Taitokerau Community Legal Service, which uses lawyers and community outreach workers but without a “law centre” base as such; and
• the establishment of a similar pilot project in Nelson.
Other recent initiatives include:
• work-in-progress towards two more pilot projects, in Gisborne and the Bay of Plenty;
• the approval of a pilot community legal education project in Taranaki; and
• the proposal that the board and the New Zealand Law Society jointly develop an 0800 telephone service intended eventually to run on a national basis.
450 None of these initiatives appears to qualify for funding from the community law centres fund under s 95 of the Act. The board has power under s 95(1)(f) to establish pilot projects for the provision of legal services (the Taitokerau, Nelson and Taranaki projects being examples), but has no power to provide funding beyond the conclusion of the pilot unless the services can be described, within s 95(1)(e), as a community law centre or a law-related education project. The Taranaki project, being confined to law-related education, will (if successful) qualify for future funding from the board, subject to the prior claims of community law centres and the competing claims of other education projects, pilot schemes and research. The Taitokerau and Nelson projects are not best described as law-related education projects, for they also deliver legal advice – which is a function of a community law centre. (s 155(a)) But their style of operation may strain that provision’s concept of a community law centre: s 155 seems to envisage a permanent “bricks and mortar” centre which provides the range of legal services needed by its community. That would preclude any permanent 0800 telephone service from being categorised as a law centre. Yet, if such a service provided legal advice, it would not be readily described as a law-related education project either.
451 There is no reason why the Act should require the district legal services committee to establish a community law centre to address unmet legal needs under s 154. This is in no sense a criticism of law centres, but rather a recognition that the diversity of need requires diversity of response. The projects in Te Taitokerau and Nelson are examples of responses designed to respond to local needs. Other examples can be imagined which have far less resemblance to community law centres. A district committee may identify in a community an unmet legal need in respect of social welfare law, because clients are unable to afford to pay a local firm for advice, even though it has the relevant expertise. Alternatively, the barrier may be one of language, and practitioners with the ability to speak the language in question may be in demand for legal advice on a range of matters by clients who cannot afford to pay for it. Subject to quality assurance, it ought to be possible in either circumstance to channel funds to the firm which is capable of meeting the need. Relevant here is the fact that franchising arrangements (which depend on quality standards being met) have been used with some success in the provision of legal services in other jurisdictions. In England and Wales, such arrangements will be the norm in future, to secure the provision of the full range of legal services that is funded by the state. (Modernising Justice, 1998)
452 The Legal Services Act allows a desirable degree of flexibility in law-related education projects in that it does not limit the organisations or individuals who can be funded by the board to provide that kind of legal service. A law firm, a law centre or any other organisation can be funded for the purpose. The position should be no different in respect of any other kinds of legal service. But it is not only the Act’s requirements for establishing and funding community law centres out of Special Fund money which inhibit innovative responses to unmet legal needs in New Zealand. Flexibility of response is also curtailed by the fact that legal aid money, provided by government, can only be used to fund services that are within the ambit of the current legal aid schemes. Those schemes rely on private lawyers and do not provide aid for legal advice in civil matters. Further, it is doubtful whether a pilot project, using Special Fund money, which relied on private practitioners to provide legal representation (as opposed to advice) in novel ways would be consistent with the Act’s judicare legal aid scheme. Such a pilot project could not be made permanent anyway. The result is that a web of factors inhibit the flexible provision of legal representation services under the Act.
453 Sufficient funding is critical to the achievement of any proposal to amend the Legal Services Act to allow greater flexibility of response to legal needs. The threats to the continued viability of the Special Fund are such that the priority claims of community law centres (to which $4.5 million have been allocated for the 1999 year) are already diminishing the amounts which the board considers it prudent to make available for law-related education, research and pilot projects. To add to the categories of legal services which may be funded from that source will inevitably increase the pressure on it.
454 It is not proposed that the funding priority status which community law centres currently enjoy under the Legal Services Act should be removed. Nor would it be desirable to broaden greatly the range of organisations capable of receiving funding from the source that is available to law centres. On the basis that sufficient funding will be made available to meet the extra demands, the need for greater flexibility could be achieved by amending the Act to provide that, subject to community law centres continuing to have first call on the funds, funding will also be available to:
• first, citizens advice bureaux (on a general basis which would enhance their capability in respect of legal services); and
• secondly, community organisations and practitioners who can satisfy the Legal Services Board and the relevant district committee of their ability to address an unmet need for a specialist form of legal services.
The funding of the latter (specialist) organisations would be in addition to any one-off grants for law-related education purposes.
Ongoing monitoring
455 The next issue also relates to s 154 of the Act. Subsection (1) provides:
It shall be a function of every Committee to establish within its district such number of community law centres as it considers necessary to ensure that the needs of that district for legal services are met.
456 Subsection (2) sets out the process for assessing legal needs, referred to in para 442. But subs (4) requires further reviews of legal services needs when there is no community law centre in existence in the district. The establishment of one law centre in a district therefore satisfies the Act’s requirements for review of that district’s legal needs. This applies even in large districts and in those with law centres which pre-dated the Act and which were, in effect, deemed to be established under it without a needs assessment under s 154(2) having been conducted.
457 The desired flexibility of response to the changing and developing legal needs of a district, and of communities within it, demands that the needs of the district be the subject of periodic review, irrespective of the services which already exist there.
Section 6 of the Law Practitioners Act 1982
458 Community law centres must obtain law society approval under s 6 of the Law Practitioners Act 1982 if they intend to provide legal advice and representation services. This is because only solicitors with practising certificates may “act as a solicitor”. Approval is given by way of exemptions from the provisions of the Act which create offences for unqualified people who act as solicitors. The need for an exemption generally arises when a law centre wishes to employ a solicitor, whether or not that person is qualified to practise on her or his own account.
459 When granting the application, the district law society must satisfy itself that:
(a) the legal work which the law centre intends to do is not being adequately undertaken by practitioners in the ordinary course of their practice (whether because of uneconomic nature of the work or the unavailability of willing practitioners); and
(b) an exemption from sections 64, 66 or 67(1) of the Act is needed to enable the centre, or its staff, to undertake the work. (New Zealand Law Society Guidelines, Community Law Centres: Exemptions under section 6 of the Law Practitioners Act (1995) 4)
460 It is inappropriate that, there having been an assessment of legal needs in a community and a decision under the Legal Services Act to establish a community law centre, there should be a further barrier in the form of the requirement for the law centre to seek approval from the New Zealand Law Society or a district society (in practice, the latter) to engage in the particular types of work. This study has been unable to establish why s 6 and its companion provision s 55(8)(b) were not repealed or at least amended at the time the Legal Services Act was passed – as had been recommended by a majority of the Access to the Law Working Party. (Final Report, 1983, 44) Some have suggested that the section was impliedly repealed by ss 154 and 155 of the latter Act, particularly in light of each law centre’s power under s 155 to perform “such functions as it considers necessary” to ensure that the legal services needs of the public are met. Whatever the case, the provision is in serious conflict with the policy of the Legal Services Act, and the latter Act should prevail as a matter of principle. With its mix of non-lawyer and lawyer members (the latter being appointed on the nomination of the district law society), and its specific function of assessing community needs for legal services, the district legal services committee is in a better position than the district law society to assess whether particular legal work is (using the language of s 6) being “adequately undertaken” by local practitioners.
461 Section 6 does, however, serve two objectives which are worthy of recognition. The first is the need for appropriate professional standards to be observed in the provision of legal services. Such matters should remain within the jurisdiction of the district society, particularly in respect of services provided by those who would, if they were practising in the mainstream profession, have to work for a specified period of time (generally three years) under supervision before being entitled to practise on their own account.
462 Secondly, although s 6 has been criticised as being anti-competitive, it may equally prevent law centres (using funds provided through the Legal Services Board) from providing free or subsidised services in competition with local law firms (whose only option is to charge fees to their clients). It is accepted that this is a real issue for the profession. But it is important to realise that the barriers to the use of mainstream legal services are not only those of cost. Communication, culture and caregiving barriers are equally capable of denying New Zealanders the benefit of those services. The funds provided to law centres should be able to be used for the purpose of meeting any legal needs in the community which are not being met by existing services, irrespective of the barrier. The answer to this problem lies in helping district legal services committees to identify those barriers effectively, and on an ongoing basis. Law centres themselves, with their community links, are also well placed to identify and respond to unmet needs. Subject to adequate provision to ensure the maintenance of professional standards in law centres, it is considered that s 6 of the Law Practitioners Act ought to be repealed.
CONCLUSION
463 It is clear that the existing range of legal services available to many communities does not meet the legal needs of women. More diverse providers can help meet the need. Law firms have their contribution to make in particular areas and for particular groups, and there is no reason in principle why they should not be adequately funded to do so where legal aid is not available and their prospective clientele cannot otherwise afford to pay. Likewise, the range of vehicles available to the Legal Services Board and its committees to respond to different needs ought not to be constrained by institutional requirements.
464 The role of the Legal Services Board and the district committees is of critical importance. Both have been required to come to grips with a wide range of new functions, with limited resources and insufficient personnel, at a time when the legal aid system is under substantial pressure and its administration in need of overhaul. (See further chapter 7) Despite the successes to date in respect of the provision of legal information and education, and community law centre establishment, it is widely agreed that more resources, and an improved process of appointing members to district committees, are essential if the board and district committees are to lead and at the same time be part of a strategic approach.
465 The Legal Services Board has the facility to proceed with care, using its powers to establish pilot schemes and take other experimental measures. With an assurance of ongoing funding, and with responsible management, the Legal Services Act has the potential to make real progress towards reducing the barriers to access to justice for New Zealand women. It is considered that the following strategies are needed to address the defects identified:
• co-ordination of legal services outside the private lawyers’ market;
• changes which focus on ensuring equitable outcomes for women in the provision of legal services outside the private lawyers’ market;
• the development of new and diverse measures to meet the diverse needs of New Zealand women for legal services; and
• transparency in the processes of both the Legal Services Board and district legal services committees.
466 Accordingly, a package of reforms is recommended here, some legislative and some administrative, which would, if adopted, result in substantial improvements to the ease with which the Legal Services Board and district legal services committees can respond to existing and future legal services needs in particular communities in New Zealand.
RECOMMENDATIONS
It is recommended that:
• the government review the funding provision for community-based legal services (including but not limited to those under Part VIA of the Law Practitioners Act and s 95 of the Legal Services Act), to ensure that a long-term funding base is available for meeting all community legal needs;
• the Legal Services Act be amended to create a further category for the funding of community legal services, in addition to those listed in s 95(1) of the Act (for community law centres, law-related education, research and pilot schemes);
• the Legal Services Board’s administration budget be reviewed, having regard to its strategic, research and oversight roles in respect of legal services;
• a new procedure be adopted for appointing non-lawyer members of district legal services committees, to enable consultation with, and nominations to be made by, interested people and groups in each legal services district;
• the Legal Services Act be amended to enable the Legal Services Board to review the legal needs of communities of interest whose members reside in more than one legal services district, and to empower the board to establish and fund measures to meet those needs;
• section 154 of the Legal Services Act be amended to allow greater flexibility in the response to unmet legal needs identified under the section, so as to enable district committees (with the agreement of the board) to
– fund the activities of citizens advice bureaux, and
– fund other specialist groups and legal practitioners who can demonstrate their ability to satisfy unmet legal needs,
and to impose on district committees an ongoing responsibility to review legal needs irrespective of whether a community law centre exists in the district;
• section 6 (and its companion provision s 55(8)(b)) of the Law Practitioners Act be repealed and replaced by a section which
– enables a community law centre established or operated under the Legal Services Act to employ practitioners, and
– entitles a practitioner employed by a law centre to hold a practising certificate subject to the power of the district law society to impose such conditions as it thinks are necessary to ensure the adequate supervision of a practitioner who is not otherwise qualified to practise on his or her own account.
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