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The legal aid crisis in New Zealand is threatening the right to justice. That’s not acceptable in an equitable society.

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Most lawyers are happy to accept that we’ll never be the same as dentists. We’re probably on a similar level to dentists: nobody would ever want to visit them unless they’ve got tooth pain.

The same goes for lawyers. When you have to resolve an issue with a lawyer without help, the assistance of a lawyer is often just as difficult as performing dental work on yourself.

Disputes over all kinds of things like bosses’ bullying and violent spouses, government overreach, child custody, and what happens to those suffering from dementia could be resolved in court. Judges have significant power over us. They have the power to seize liberty, property, and even children and can even ordain psychiatric treatment.

This is why the right to an impartial trial is important, and that is why the legal aid system is so crucial to ensuring fairness. Therefore, the recent Law Society survey of lawyers found that this system “on life support” is the reason for concern.

The art of balancing odds

Our court system is founded on the adversarial system that allows for arguments to be heard by the parties involved, and an impartial judge (or judge and jury) is the one to make a decision. This calls for what’s known as “equality of arms” – in essence, having an equal opportunity for lawyers.

In the other case, there could be an imbalance, which could cause an unjust outcome with significant negative results. This is why the legal system is of crucial importance for a society that is committed to fairness.

Corporations, governments, and other well-funded companies will almost always have lawyers. Society will pay for them fully if they’re working for public entities. The society also provides a part-payment for lawyers representing commercial entities as their fees will be able to be deducted from income and, thus, lower taxes.

It’s been long-held that society should offer lawyers to those who have to deal with the state’s power in criminal cases. In 1912 it was in 1912 that the New Zealand Parliament enacted a legal aid system for defendants who didn’t have enough resources. The first step was to pay legal aid lawyers at the same rates as the lawyers prosecuting criminals.

However, many crucial decision-making decisions are also made by these courts. Legal aid for civil proceedings was established in 1939 and targeted “poor people.”

When the system was overhauled and extended in 1969, the intention was to create more provisions for people with “small or moderate means.” The plan also stipulated that lawyers in legal aid be paid at 85% of what they could have otherwise charged.

Lawyers quit legal assistance.

Many things have changed in the last few years. If you are eligible for legal aid today, it’s a form of loan seldom written off – and carries interest, eventually leading to limitations on any assets.

However, it’s more likely that you won’t get legal aid in the first place, as only those who have very limited resources can qualify.

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As it is evident from the Law Society survey shows, even if you are eligible, there’s a high chance that you will not be able to locate an attorney. The survey found that more than 60 percent of lawyers do not intend for legal assistance work. Those who are interested are often forced to limit the number of cases they handle.

Legally assisted people are often rejected. The situation is likely to worsen as one-quarter of those willing to avail of legal aid have plans to cut back on their legal aid shortly.

The red tape and the low pay

Another issue mentioned by the lawyers surveyed is the amount of bureaucracy they have to deal with. It can be traced back to an examination of aid to legal counsel in 2009 that led to the present legal framework under the Legal Services Act 2011.

The review put a large trust in anecdotal evidence of misconduct by lawyers. It’s always been the case that legal aid spending needs to be justified. However, the current system appears to be managed microscopically.

Another major issue is that the legal aid pay rates aren’t high and haven’t been changed in many years. It’s not only that lawyers earn more – much more – if they do not seek legal aid. It’s because legal aid fees often aren’t enough to cover the costs.

If legal academics inquire about why law students are interested in becoming lawyers and why they want to assist, people in difficult circumstances are the most common response. This is especially relevant for those from more vulnerable communities, like Maori, Pacific Island, and refugees.

Infringing on the right to justice

Of course, it’s possible to be sarcastic regarding lawyers who ask for money for their lawyers. This is a result of the issue of image. Compare it to medical professionals who advocate for a more dependable health care system, with higher pay for nurses and doctors. The general public is generally supportive.

However, just as access to healthcare is excellent, as is access to justice. Both are essential to an enlightened society.

If we look back to the beginnings of legal aid was an understanding that relying upon charity was not a good option when the stakes were very high. There was a recognition that fair trials are a fundamental element in the justice system, and legal aid could aid in ensuring equality in access to justice for everyone.

The right to justice is acknowledged as a right in the New Zealand Bill of Rights Act 1990. However, it’s removed as time goes by because fewer people can access legal aid, and fewer legal professionals are allowed to undertake the work.

This Law Society survey suggests urgent actions are required to prevent the justice gap that should be unacceptable in contemporary New Zealand.

Brian Santiago

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