A small amendment to the Legal Services Act 2011 on 12 December 2014 relates to the availability of civil legal aid for public protection order (PPO) proceedings. The following is a thumbnail sketch of the amendment and the legal aid position arising from it, with Internet links to further information.
Background: the amending Act
The Public Safety (Public Protection Orders) Act 2014 (PSPPO Act) was assented to on 11 December 2014 and came into force the following day. Comprised of 144 sections plus a schedule, the PSPPO Act’s objective is “to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences” (s 4(1)). All applications for PPOs are made by the chief executive of the Department of Corrections (s 8(1)), and are subject to certain principles (s 5) and threshold/evidential requirements (ss 7, 9, 10, 12 and 13). An outline on the Department of Corrections’ webpage “Public Safety (Public Protection Orders) Act” (22 December 2014) notes:
“The Public Safety (Public Protection Orders) Act 2014 empowers the High Court to issue a public protection order to detain a person in a secure civil (not prison) facility when, at the end of a finite prison sentence or subject to the most intensive form of an extended supervision order, they pose a very high risk of imminent and serious sexual or violent reoffending.
“The Act details the application, assessment and review process for public protection orders as well as the status and rights of residents and their management.”
For further information about the PSPPO Act, see: the Department of Corrections’ Regulatory Impact Statement: Management of High Risk Sexual and Violent Offenders at End of Sentence (20 March 2012); the Attorney-General’s report Public Safety (Public Protection Orders) Bill – Consistency with the New Zealand Bill of Rights Act 1990 (14 October 2012); Parliament’s webpage “Public Safety (Public Protection Orders) Bill”; and the Justice Minister’s press release “Public safety improved by new protection orders” (4 December 2014).
The amendment: a further type of “specified application” for legal aid
Section 142 of the PSPPO Act amended the definition of “specified application” in s 4(1) of the Legal Services Act 2011 on 12 December 2014, by adding para (ca):
“specified application means an application for legal aid made—
“(a) under section 47 in respect of certain proceedings before the Waitangi Tribunal; or
“(b) by a patient or proposed patient in respect of proceedings under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
“(c) by a care recipient or proposed care recipient in respect of proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
“(ca) by a person who is a respondent to an application under the Public Safety (Public Protection Orders) Act 2014, or who is subject to an order under that Act, in respect of an application under that Act; or
“…” (emphasis added)
This amendment was recommended by a select committee majority, as explained in the Public Safety (Public Protection Orders) Bill 2012 (68-2) (select committee report) at 5:
“We recommend inserting new [para (ca)] into the Legal Services Act 2011, to make any proceedings under the [PSPPO Act] a ‘specified application’. This would treat these applications in a similar way to those relating to compulsory mental health and intellectual disability proceedings, making it easier to access legal aid than it is for standard civil proceedings.”
In what ways is it “easier to access” civil legal aid when an aid application is a “specified application”? This is uncovered by locating each subsequent instance of the expression “specified application” in the Legal Services Act. (It appears four times – in ss 10(2A), 10(3A)(b), 18(7)(a) and 18A(4)(a).) In short, access to civil legal aid is “easier” with a “specified application” in the following ways:
- the usual financial eligibility test for civil legal aid is relaxed slightly, by changing from conjunctive to disjunctive the two limbs of the “special circumstances” proviso to the maximum income and disposable capital levels allowed (see s 10(2)–(2A));
- the possibility of civil legal aid being refused because of repayment arrears on other legal aid grants is removed (see s 10(3A)); and
- if civil legal aid is granted in relation to the “specified application”, the grant is exempt from any repayment and associated conditions (see s 18(7)(a)) and from the $50 user charge (see s 18A(4)(a)).
Note that there is no relaxation of other eligibility tests for civil legal aid (such as the “prospects of success” tests in s 10(4)(d)(i)).
The maximum grant if aid is granted: new fixed fees
For the purposes of s 23 of the Legal Services Act – under which a grant of legal aid “may specify a maximum grant” – in September 2014 the Ministry of Justice prospectively released a set of fixed fees for PPO proceedings. The six-page Civil (Public Protection Orders) Fixed Fees Schedule (undated) specifies various fee amounts under the main headings “Termination of instructions”, “Application(s)/Order(s)”, “Specialist reports”, “Pre-Hearing Matters”, “Defended Hearing(s)”, “Interlocutories” and “Reviews and subsequent activity”. A “Granting Notes” section provides additional information relating to (for example) waiting time, amending a grant, disbursements (as to which, see the postscript below) and additional factors.
The new fixed fees were publicly announced in the Ministry’s news item “New legal aid fixed fees – Public Safety (Public Protection Orders)” (25 September 2014):
“The Public Safety (Public Protection Orders) Bill is expected to become law by early 2015. In readiness for this new piece of legislation, legal aid fixed fees have been developed for Civil (Public Protection Orders) and will be available for use once the Bill has passed and is in force.
“Consultation about the fixed fees for [Public Protection] Orders was progressed during August and September 2014 with NZLS and ADLS Committees, NZLS members, and legal aid providers. A Wellington-based workshop was also held with Parole providers. No issues were raised. It was agreed that it is most likely that respondents will turn to their Parole providers for assistance when defending a Public Protection Order application.”
Regarding the consultation, the New Zealand Law Society said in an earlier letter to the Ministry regarding the proposed fixed fees (11 September 2014):
“The Law Society’s Legal Services Committee had no comments on the proposed fixed fees for this work, nor did practitioners express any concerns to the Law Society when the legal aid PPOs consultation item ran in the LawPoints e-bulletin. However these orders will be a new area of civil law and there is therefore a degree of uncertainty as to the volume of applications that can be expected as well as the nature and extent of the work involved, and the Law Society asks that this area be kept under review. Once a number of applications have gone through the system (in perhaps 18 – 24 months’ time), the Ministry and lawyers will have a better understanding of the work involved. At that point the Law Society recommends that the Ministry consults more fully with the profession, including as to whether the fixed fees for this work are considered adequate.”
The Legal Services Act 2011 was amended on 12 December 2014 by the Public Safety (Public Protection Orders) Act 2014, as recommended by a select committee majority. The effect is that civil legal aid for PPO proceedings falls under the “specified application” provisions of the Legal Services Act. This relaxes some of the usual eligibility tests for civil legal aid, and removes the prospect of repayment conditions and a user charge if aid is granted. The Ministry of Justice has published fixed fees for legal aid providers acting in PPO proceedings, and the New Zealand Law Society has requested that the fees be reviewed in 18–24 months.
On 22 January 2015 the Ministry of Justice prospectively released Legal Aid Disbursement Policy Civil (1 March 2015). According to the Ministry’s news item “Updated Legal Aid Disbursement Policy Civil” (22 January 2015):
“An updated disbursements policy for Civil cases will apply from 1 March 2015.
“This policy updates the existing disbursements policy dated 30 December 2014, to include disbursements to support the new employment fixed fees and the introduction of the Public Safety (Public Protection Orders) legislation (PPOs).”
It appears that the date of 1 March 2015 relates to when the Ministry’s new fixed fees for employment matters take effect (see the Ministry’s news item “Employment legal aid fees” (27 August 2014)). Thus it appears that, technically at least, there is a gap between: (1) the date that the PSPPO Act came into force and the Civil (Public Protection Orders) Fixed Fees Schedule became operative (12 December 2014); and (2) the date that a version of the Legal Aid Disbursement Policy Civil that addresses PPO proceedings takes effect (1 March 2015). Technically, the existing Legal Aid Disbursement Policy Civil (30 December 2014) remains the operative policy version during this period. (But presumably the updated version would be a “guiding light” if there happened to be any PPO proceedings/disbursements during this period.)
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