20 Oct 2015

Legal aid rules not failing domestic violence victims says minister

2:25 pm on 20 October 2015

The Justice Minister is defending the legal aid system against accusations that it discriminates against victims of domestic violence.

A single adult must earn less than $22,000 a year to apply for legal aid, and hundreds of victims cannot afford to get protection orders because of that threshold.

It is free to file a protection order, but the Law Society says many people cannot afford legal representation and do not qualify for legal aid.

A young woman - sad or upset - sits on a bench with her head in her hands.

A single adult, in most circumstances, must earn less than $22,000 a year to qualify for legal aid. Photo: 123RF

The Ministry of Justice took over legal aid in 2011, and introduced a series of budget cuts aimed at saving $250 million.

The government is now reviewing its family violence law, but says the review will not cover legal aid.

However, the minister Amy Adams said the system was not failing.

"What I have said in the domestic violence review is that affordability and access to protection orders is part of what we're looking at, so that's part of what we are exploring, but I don't accept that there's a substantial failing of the legal aid service when 97 percent of applications are granted."

Women's Refuge spokesperson Ang Jury said she wanted to see the legal aid threshold for protection orders scrapped.

"It's been said that there's around five percent that have been declined for their applications, for legal aid, for protection orders, that's five percent way too many, there shouldn't be anything declined on the basis of finance, not when it comes to women's safety."

Dr Jury said many women on a reasonable income also struggled to pay for a lawyer.

Legal aid rules 'unfair'

There are some special provisions in cases involving domestic violence but Law Society family law chair Allan Cooke said the threshold was still too low.

He said many people who earn more than $22,000 still could not afford legal representation.

"You may have a male partner who is able to fund his representation, but the female partner is not able to get legal aid and may then have issues getting legal advice, and therefore can't follow through on the protection order," he said.

"It's a power imbalance, or an inequality of arms."

Criminal Bar Association president Tony Bouchier said legal aid rules were unfair.

"It's certainly a problem when victims of domestic violence don't get protections under the law that are there to be had," he said.

"If you can't afford a lawyer, you don't get justice - which is a basic right in this country," he said.

Caucus run 21/07/15

Amy Adams said the system was not failing the legal aid service when 97 percent of applications were granted. Photo: RNZ / Alexander Robertson

The government is reviewing its family violence law, but said it would not look at legal aid.

Justice Minister Amy Adams said in a statement that it was free to file a protection order.

Anti-violence group Shine spokesperson Jill Proudfoot said she was missing the point.

"There is a possibility to do it themselves, but a lot of the women we work with find that a daunting prospect," she said.

"We can help them with it, but having a lawyer makes a really big difference to the likelihood of the case's success because they're so skilled at wording the right questions and making it legally acceptable for the judge."

She said almost every day of the week she talked to victims of domestic violence who earn too much for legal aid, but still can't afford a lawyer.

"I think the most important issue is we don't think women should have to pay for their safety at all - it's everyone's right to be safe."

Labour MP Jacinda Ardern

Labour MP Jacinda Ardern said the legal aid issue should have been addressed as part of the family violence law review. Photo: RNZ / Alexander Robertson

Ms Adams's office said the law review would look at improving how easy it is for people to get protection orders.

"The accessibility of protection orders is a big part of the review into family violence legislation and was specifically referred to in the discussion document."

Its figures show 351 people have been refused legal aid for a protection order over the past two years, which is about five percent of those who applied.

But Labour Party justice spokesperson Jacinda Ardern said hundreds more do not make the effort because of the rules.

"There will be those who simply don't attempt to get that assistance, and it may well be that they're in a difficult circumstance where equity in a home rules them ineligible, but it's a home they've shared with someone who has committed violence against them," she said.

"This issue absolutely should have been part of the government's family violence law review - the ability to pay for legal representation to get a protection order should not be the determining factor in whether people get an order or not."

She said many people were having to self-represent in court, which threatened their right to a fair trial.

The Ministry of Justice took over legal aid in 2011, and introduced a series of budget cuts aimed at saving $250 million.

Mr Bouchier said things had deteriorated since then, and more funding was the answer.

"The whole idea of legal aid is to give people the opportunity of access to justice which is an absolute basic right in this country," he said.

"It comes down to whether the government is going to properly fund the legal aid system; that's where we're at at the moment.

"The legal aid system is not being fully provided for and it's causing all sorts of issues of justice in our court system - it's legal aid on a shoestring budget."

About a fifth of people who receive legal aid have to pay it back - and with interest - but very few can afford to do so.

The latest figures show the government is owed more than $100 million in legal aid debt.

Get the new RNZ app

for ad-free news and current affairs