Fiscal Sustainability Versus Fundamental Human Rights: Achieving the Right Balance for Criminal Legal Aid in New Zealand

Abstract

Access to justice is a fundamental human right and an essential element of any fair society. It is safeguarded, in part, by the delivery of state-funded legal aid. In recent years, legal aid expenditure has dramatically increased and the New Zealand Government has proposed a number of changes to the scheme to ensure fiscal sustainability into the future. These changes, contained within the Legal Assistance (Sustainability) Amendment Bill 2011, stand in conflict with the Government’s domestic and international obligations to protect access to justice. In particular, the Government has a specific responsibility to safeguard Maori interests under the Treaty of Waitangi. Maori suffer from over-representation in the criminal justice system and could be disproportionately affected by changes to the legal aid scheme. Without legal assistance, many defendants will struggle to acquire legal representation and may have to resort to self-representation or guilty pleas. Even where defendants qualify for legal assistance, interest-bearing debt is likely to introduce an unserviceable financial burden. This paper will consider whether New Zealand can truly “afford” the proposed amendments to criminal legal aid in light of the potential negative effects. Alternative solutions should be carefully considered before commencing changes that will significantly erode access to justice.