The purpose of this Act is to promote access to justice by—
(a)
providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them; and
(b)
providing other schemes of legal assistance; and
(c)
supporting community legal services by funding community law centres, education, and research.
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Interpretation
(1)
In this Act, unless the context otherwise requires,—
Agency means the Legal Services Agency established by section 91
aided person—
(a)
means a person who is or has been granted legal aid under this Act or the former Act; and
(b)
includes a person whose grant of legal aid has been withdrawn under section 27 of this Act
approved scheme means a scheme (other than the legal aid, duty solicitor, or PDLA schemes) that is administered by the Agency and approved by the Minister under a purchase agreement for the provision of particular legal services
auditor means a person employed or appointed by the Agency for the purpose of conducting examinations, or audits, or both
Board means the Board of the Agency referred to in section 94
capital, in relation to a person, means that person's capital as described in Schedule 1
civil proceedings includes—
(a)
proceedings under the Marriage Act 1955, the Adoption Act 1955, the Care of Children Act 2004, the Domestic Actions Act 1975, the Property (Relationships) Act 1976, the Family Proceedings Act 1980, the Domestic Violence Act 1995, or subparts 5, 7, 8, and 9 of Part 1 of the Weathertight Homes Resolution Services Act 2006 and
(b)
proceedings under the Children, Young Persons, and Their Families Act 1989, other than proceedings in respect of an offence; and
(c)
despite paragraph (b), proceedings under Part 2 of the Children, Young Persons, and Their Families Act 1989 on the ground specified in section 14(1)(e) of that Act
community legal services means services provided or funded under this Act other than through a scheme
cost of services means the sum of the following
(a)
the fees of, or charges attributable to, the lead provider, as approved for payment under section 75 or prescribed by regulations; and
(b)
the fees of, or charges attributable to, any other listed provider who acted on the matter, as approved for payment under section 75 or prescribed by regulations; and
(c)
the disbursements claimed by the lead provider and any other listed provider who acted on the matter, as approved for payment under section 75
criminal proceedings includes—
(a)
proceedings on an application made under any of sections 54, 68, or 121 of the Sentencing Act 2002:
(b)
proceedings before a District Court Judge under section 88 of the Summary Proceedings Act 1957:
(c)
proceedings for contempt under section 84O of the District Courts Act 1947:
(d)
proceedings before a District Court Judge under the Extradition Act 1999 relating to the surrender to a foreign country of the person to whom the proceedings relate
disposable capital, in relation to a person, means that person's disposable capital as described in Schedule 1
duty solicitor scheme means the scheme of that name administered by the Agency under section 46
former Act means the Legal Services Act 1991
grant of legal aid, and any similar expression, means a grant of legal aid under this Act or the former Act; and includes any amendments to that grant
income, in relation to a person, means that person's income as described in Schedule 1
interim repayment means the amount that an aided person is required to pay to the Agency under section 15(1) as a condition of a grant of legal aid
lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
lead provider, in relation to a grant of legal aid, means the listed provider identified in the grant as the lead provider for that matter
legal aid scheme means the scheme of that name administered by the Agency under Part 2
legal service list means the list of people approved by the Agency to provide legal services under 1 or more schemes
legal services,—
(a)
in relation to legal aid, means legal advice and representation; and includes assistance—
(i)
with resolving disputes other than by legal proceedings; and
(ii)
with taking steps preliminary or incidental to any proceedings; and
(iii)
in arriving at or giving effect to any out-of-court settlement that avoids or brings to an end any proceedings:
(b)
in relation to a community law centre, includes—
(i)
legal advice and representation (including the kinds of assistance described in subparagraphs (i) to (iii) of paragraph (a)); and
(ii)
the provision of legal information and law-related education; and
(iii)
undertaking law-reform and advocacy work on behalf of the community it serves:
(c)
in relation to anything else, includes all the things specified in paragraphs (a) and (b), unless otherwise specified
Legal Services Board means the Legal Services Board established under section 94 of the former Act
listed provider, in relation to the provision of particular services under a scheme, means a natural person who is listed as approved to provide those services
maximum grant means the maximum amount of legal aid granted under a grant of legal aid
mentally disordered has the same meaning as it has in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992
Minister means the Minister of Justice
output agreement has the same meaning as in section 10 of the Crown Entities Act 2004
PDLA scheme means the police detention legal assistance scheme administered by the Agency under section 49
prescribed manner means the manner prescribed by the Agency
prescribed repayment amount is the amount, based on income and capital, set by regulations made under this Act for the purposes of sections 17(1) and 18
proceeds of proceedings, in relation to civil proceedings for which legal aid has been granted, means—
(a)
any money or property to which the aided person is entitled under a judgment or out-of-court settlement relating to the proceeding; and
(b)
any costs awarded or payable to the aided person under a judgment or out-of-court settlement relating to the proceedings
property includes real and personal property, any estate or interest in any real or personal property, and any debt, thing in action, and any other right or interest
proposed care recipient has the meaning given to it by section 6(4) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
proposed patient has the meaning given to it by section 2A of the Mental Health (Compulsory Assessment and Treatment) Act 1992
repayment means the amount of money that an aided person is required to pay to the Agency under section 15(2) as a condition of a grant of legal aid
Review Panel means the Legal Aid Review Panel established under section 62
scheme means any one or more of the following
(a)
the legal aid scheme:
(b)
the duty solicitor scheme:
(c)
the PDLA scheme:
(d)
an approved scheme
Special Fund means the Lawyers and Conveyancers Special Fund continued by section 289(1) of the Lawyers and Conveyancers Act 2006
transition date means 1 February 2001
victims' claims proceedings means proceedings of the kind specified in section 7(1)(q).
(2)
In this Act, a reference to an application “by” a person, or a grant “to” a person includes a reference to an application made by one person on behalf of another, or a grant made in respect of a person other than the person to whom the grant is made.
(3)
In this Act, and in any regulations made under it, references to such things as fees, charges, disbursements, grants, and rates, are references to those things GST inclusive.
Compare: 1991 No 71 ss 2, 47, 49A(1), 95(2), 155
Section 4(1) aided person: substituted, on 1 March 2007, by section 4 of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) capital: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) civil proceedings paragraph (a): amended, on 1 April 2007, by section 127(4)(a) of the Weathertight Homes Resolution Services Act 2006 (2006 No 84).
Section 4(1) civil proceedings paragraph (a): amended, on 1 July 2005, by section 151 of the Care of Children Act 2004 (2004 No 90).
Section 4(1) civil proceedings paragraph (a): amended, on 27 November 2002, by section 64(1) of the Weathertight Homes Resolution Services Act 2002 (2002 No 47).
Section 4(1) civil proceedings paragraph (a): amended, on 1 February 2002, by section 64(2) of the Property (Relationships) Amendment Act 2001 (2001 No 5).
Section 4(1) contribution: repealed, on 1 March 2007, by section 4(1) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) cost of services: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) criminal proceedings paragraph (a): amended, on 30 June 2002, by section 187 of the Sentencing Act 2002 (2002 No 9).
Section 4(1) disposable income: repealed, on 1 March 2007, by section 4(1) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) income: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) interim repayment: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) lawyer: substituted, on 1 August 2008, by section 348 of the Lawyers and Conveyancers Act 2006 (2006 No 1).
Section 4(1) output agreement: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 4(1) prescribed repayment amount: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) proposed care recipient: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) proposed patient: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) purchase agreement: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 4(1) repayment: inserted, on 1 March 2007, by section 4(2) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 4(1) Special Fund: substituted, on 1 August 2008, by section 348 of the Lawyers and Conveyancers Act 2006 (2006 No 1).
Section 4(1) transition date: amended, on 4 June 2005, by section 66(1) of the Prisoners’ and Victims’ Claims Act 2005 (2005 No 74).
Section 4(1) victims' claims proceedings: inserted, on 4 June 2005, by section 66(2) of the Prisoners’ and Victims’ Claims Act 2005 (2005 No 74).
Proceedings for which legal aid may be granted: criminal matters
Legal aid may be granted in respect of the following criminal matters:
(a)
criminal proceedings in a District Court, a Youth Court, the High Court, the Court of Appeal, or the Supreme Court:
(b)
appeals to the Judicial Committee of the Privy Council in criminal proceedings, where the Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of criminal legal aid is desirable in the public interest:
(c)
proceedings—
(i)
before the New Zealand Parole Board under section 27, section 65, or section 107 of the Parole Act 2002 (which relate to postponement orders, recall orders, and orders under section 107 of that Act respectively):
(ii)
in the High Court on an application under section 68 of the Parole Act 2002 (which relates to appeals against postponement orders, section 107 orders, and final recall orders).
Compare: 1991 No 71 s 4
Section 6(a): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
Section 6(c): substituted, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).
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Proceedings for which legal aid may be granted: civil matters
(1)
Legal aid may be granted in respect of the following civil matters:
(a)
civil proceedings in a District Court or a Family Court:
(b)
civil proceedings in the High Court, the Court of Appeal, or the Supreme Court:
(c)
appeals to the Judicial Committee of the Privy Council in civil proceedings in any case where—
(i)
the applicant has succeeded in the Court of Appeal and is the respondent in the appeal to the Privy Council, if the grant of aid is approved by the Minister; or
(ii)
the Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of aid is desirable in the public interest:
(d)
proceedings commenced by way of application in a Youth Court under Part 7 of the Children, Young Persons, and Their Families Act 1989 or in respect of any review of any determination of, or any order made in, a Youth Court in any such proceedings:
(e)
in any case where the Agency considers that the case is one that requires legal representation (having regard to the nature of the proceedings and to the applicant's personal interest) and considers that the applicant would suffer substantial hardship if aid were not granted, proceedings in—
(i)
the Maori Land Court; or
(ii)
the Maori Appellate Court; or
(iii)
the Employment Court; or
(iv)
the Employment Relations Authority; or
(v)
any administrative tribunal or judicial authority (not being a tribunal or an authority in respect of any decision from which an appeal lies to any of the bodies referred to in any of paragraphs (f) to (j)):
(f)
proceedings before the Waitangi Tribunal:
(g)
proceedings before the Social Security Appeal Authority:
(h)
proceedings before the Tenancy Tribunal:
(i)
proceedings before a body established under section 63(1)(a)(i) of the Housing Restructuring and Tenancy Matters Act 1992 to hear appeals under section 62 of that Act:
(j)
proceedings before the Refugee Status Appeals Authority (whether as established by the government of New Zealand or as continued under section 129N of the Immigration Act 1987) in respect of any claim for refugee status made before 1 April 1999 (being the date on which the Immigration Amendment Act 1999 received the Royal assent), or any other matter relating to refugee status that arose before that date:
(k)
the processing, under Part 6A of the Immigration Act 1987, of any claim for refugee status first made on or after 1 April 1999 (including proceedings on any appeal in relation to such a claim), and the processing of any other matter arising under section 129L or section 129R of the Immigration Act 1987 that first arose on or after that date (including proceedings on any appeal in relation to such a matter):
(l)
any judicial review proceedings (as defined in section 2 of the Immigration Act 1987) in respect of proceedings or matters to which paragraph (j) or paragraph (k) applies:
(m)
any application under section 114I of the Immigration Act 1987 for a review by the Inspector-General of Intelligence and Security of a decision of the Director of Security to make a security risk certificate:
(n)
all applications, submissions, and appeals under the Resource Management Act 1991 or to the Environment Court under any other Act:
(o)
all applications, submissions, and appeals to any Council or body in any case where an appeal in relation to its decision lies to the Environment Court.
(p)
proceedings before the tribunal under the Weathertight Homes Resolution Services Act 2006.
(q)
proceedings before a Tribunal under subpart 2 of Part 2 of the Prisoners' and Victims' Claims Act 2005 in respect of 1 or more victims' claims under that subpart.
(2)
Paragraphs (n) and (o) of subsection (1) do not restrict any other paragraph of that subsection.`
(3)
Despite subsection (1), but subject to subsection (4)(e), legal aid is not available in proceedings under Part 4 of the Family Proceedings Act 1980 (which relates to proceedings relating to the status of marriage) unless the Agency is of the opinion—
(a)
that the unusual complexity of the case requires that the applicant be legally represented; or
(b)
that the applicant would suffer substantial hardship if aid were not granted.
(4)
Despite subsection (1), legal aid is not available in any of the following proceedings:
(a)
relator actions:
(b)
election petitions under the Electoral Act 1993:
(c)
petitions for inquiry under the Local Electoral Act 2001:
(d)
proceedings incidental to any proceedings mentioned in any of paragraphs (a) to (c) of this subsection:
(e)
proceedings under section 37 of the Family Proceedings Act 1980 (which relates to dissolutions of marriage), or appeals in proceedings under that section:
(f)
any appeal to the Residence Review Board under section 18C of the Immigration Act 1987:
(g)
any appeal to the Removal Review Authority under Part 2 of the Immigration Act 1987:
(h)
proceedings before a Commission of Inquiry under the Commissions of Inquiry Act 1908 (other than a Commission of Inquiry established or appointed by or under another enactment but deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908).
Compare: 1991 No 71 s 19
Section 7(1)(b):amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
Section 7(1)(i): amended, on 1 July 2006, by section 5(2)(e) of the Housing Restructuring and Tenancy Matters (Information Matching) Amendment Act 2006 (2006 No 34).
Section 7(1)(p): added, on 27 November 2002, by section 64(1) of the Weathertight Homes Resolution Services Act 2002 (2002 No 47).
Section 7(1)(p): amended, on 1 April 2007, by section 127(4)(b) of the Weathertight Homes Resolution Services Act 2006 (2006 No 84).
Section 7(1)(p): amended, on 1 April 2007, by section 127(4)(c) of the Weathertight Homes Resolution Services Act 2006 (2006 No 84).
Section 7(1)(q): added, on 4 June 2005, by section 67 of the Prisoners’ and Victims’ Claims Act 2005 (2005 No 74).
Section 7(4)(c): amended, on 1 July 2001, by section 151 of the Local Electoral Act 2001 (2001 No 35).
Section 7(4)(f): amended, on 20 September 2007, by section 4 of the Legal Services Amendment Act 2007 (2007 No 68).
Section 7(4)(f): amended, on 1 March 2007, by section 5(1) of the Legal Services Amendment Act 2006 (2006 No 5).
Section 7(4)(h): added, on 1 March 2007, by section 5(2) of the Legal Services Amendment Act 2006 (2006 No 5).
The Agency may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—
(a)
the applicant is a natural person charged with or convicted of an offence; and
(b)
it appears to the Agency that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and
(c)
either—
(i)
the offence to which the application relates is punishable by a maximum term of imprisonment of 6 months or more; or
(ii)
it appears to the Agency that the interests of justice require that the applicant be granted legal aid.
(2)
When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency must have regard to—
(a)
whether the applicant has any previous conviction; and
(b)
whether the applicant is charged with or convicted of an offence punishable by imprisonment; and
(c)
whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and
(d)
whether the proceedings involve a substantial question of law; and
(e)
whether there are complex factual, legal, or evidential matters that require the determination of a court; and
(f)
whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and
(g)
in any proceeding to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and
(h)
in respect of an appeal, the grounds of the appeal.
(3)
When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.
(4)
When determining whether or not an applicant has sufficient means to enable him or her to obtain legal assistance, the Agency must have regard to the applicant's income and disposable capital.
(5)
Subsection (1)(c)(i) does not apply in respect of—
(a)
an appeal; or
(b)
a proceeding to which section 6(c) applies.
(6)
Despite subsection (1)(a), the Agency may not grant legal aid to a child or a young person (as those terms are defined in section 2(1) of the Children, Young Persons, and Their Families Act 1989) in respect of any proceedings against that child or young person for an offence, if these proceedings are heard in a Youth Court.
Section 8: substituted, on 1 March 2007, by section 6 of the Legal Services Amendment Act 2006 (2006 No 5).
