Triennial Review of Legal Aid

Legal aid is a cornerstone of the justice system  

The legal aid scheme is a cornerstone of New Zealand’s justice system, providing access to justice to people who otherwise could not afford it. The scheme aims to provide legal advice and representation to eligible legal aid clients, while doing so as efficiently and effectively as possible. 

Legal aid supports people to prevent their legal problems from escalating by having the option of accessing a lawyer that can help them to seek an early, effective, and tailored resolution. It also helps to ensure that people who seek to enforce their rights can use the legal system to obtain an outcome by means of a fair and open process. 

Legal aid is a loan. The expectation is that in some cases the cost of legal aid services will be repaid to the State. The legal aid debt that is established each year is generally low compared to the overall cost of legal aid services. Repayment rates for legal aid debt are also generally low.

There are three categories of legal aid

The legal aid scheme is often discussed as one system when there are three distinct categories of legal aid: criminal legal aid, civil legal aid (including cases before the Waitangi Tribunal) and family legal aid. 

The structure of the legal aid scheme reflects the jurisdictions of the court system, with each category tailored to the proceedings within that jurisdiction. This means that legal aid services are often provided by different legal aid providers and the effects of legal aid settings can be experienced differently by clients across criminal, civil, and family legal aid. Likewise, key aspects of the legal aid scheme, such as legal aid expenditure and recovery rates, vary significantly between different categories of legal aid. 

Many legal aid scheme settings apply to all legal aid categories. These settings often relate to the administration of the scheme and concern matters such as funding and procurement approaches and accountability requirements. However, other scheme settings relate specifically to one or more category of legal aid. 

In considering possible improvements to the legal aid scheme, this document first discusses issues and proposals that are common across the scheme and then those issues and proposals that relate to specific categories of legal aid.

Demand for legal aid is increasing 

Legal aid eligibility

To qualify for legal aid, applicants must meet eligibility criteria set out in the Legal Services Act 2011 and the Legal Services Regulations 2011. Eligibility for civil and family legal aid is largely based on an applicant’s maximum income and their disposable capital (including any assets), offset by the number of dependants they have. The financial thresholds for civil and family legal aid are prescribed in the regulations. A range of tests also apply, including an examination of the merits of the case and whether an applicant owes any previous legal aid debt.  

To qualify for criminal legal aid, no fixed income or capital thresholds apply, but an applicant must provide information to show that they do not have sufficient means to obtain legal assistance. 

Eligibility for criminal legal aid is also dependent on the charges the applicant is facing. In general, if an applicant is charged with an offence where they could face a prison term of six months or more, then aid can be granted. Otherwise, it is based on an assessment of whether the interests of justice require that a grant be made. 

The Legal Services Commissioner and Legal Aid Services staff make the day-to-day decisions about legal aid grants. 

Legal aid cases

The number of legal aid cases is steadily increasing across all categories. Between 2018 and 2024, the number of legal aid grants approved increased by 13% (from 76,531 to 86,309).[1] Broken down by legal aid category over this period, criminal legal aid cases increased by 8% (from 57,390 to 62,014), civil[2] legal aid cases increased by 106% (from 1,353 to 2,787) and family legal aid cases increased by 21% (from 17,788 to 21,509). 

Legal aid clients

The number of legal aid clients reflects the very high volume of legal aid cases.  

The demographic profile of legal aid clients differs significantly between categories of legal aid, particularly between criminal and family legal aid. These differences can be observed across demographic factors (e.g. age, gender, and ethnicity). Differences also extend to other personal circumstances, such the number of dependants and income.

Since late-2017, certain demographic information is no longer collected on the legal aid application form.  Data from the 2017 calendar year has been used to gain a high-level overview of the gender and ethnicity distribution by legal aid type, while data from 2024 is used for age distribution[3].  

In 2017, there were significant differences by gender across different categories of legal aid.  While more than half (57%) of family legal aid clients were female, most civil and criminal legal aid clients, 71% and 75% respectively, were male.  Differences in the gender breakdown between different categories of legal aid are likely to have continued. If this is the case, changes to family legal aid settings resulting from this review could have a disproportionate effect on women, whereas changes to civil and criminal legal aid could have a more significant impact on men.

Data concerning the ethnicity of legal aid clients in 2017 was generally inconclusive, with ethnicity unknown for a majority of criminal legal aid clients (55%) and for a significant proportion of family legal aid clients (30%) and civil legal aid clients (26%).

While anyone can experience legal problems, research demonstrates that Māori and Pacific people are more likely to access legal aid services and earn incomes which are within the eligibility criteria for legal aid. Ministry legal aid figures and population data from the 2018 Census show that a significantly larger number of legal aid grants are made in regions with proportionately higher Māori and Pacific populations (relative to the general population). For example, the Bay of Plenty, Gisborne and Hawkes Bay regions have 17.26% of the general population combined, but 28.9% of the Māori population and 23% of legal aid grants.

Data from 2021 also demonstrates that people of Māori and Pacific Island ethnicity who earn low incomes, earn lower gross incomes on average than the other ethnicities or the national average. As eligibility for legal aid is determined by income this means that a higher proportion of people of these ethnicities will be eligible for legal aid. However, eligibility for legal aid does not always translate into legal aid being granted.

In 2022, the New Zealand Law Society’s Access to Justice report noted that Māori, Pacific, women, and lower socio-economic groups experience more barriers accessing legal aid and could therefore be expected to be most impacted by changes to legal aid settings.  

As Māori and Pacific people are also more likely to be defendants in criminal cases (relative to the general population)[4], changes to criminal legal aid settings can be expected to have a proportionately bigger impact on Māori that on other criminal legal aid clients.

The age distribution for legal aid clients is reasonably consistent across all types of legal aid. 24% of both family and civil legal aid clients are aged 19-29, with 34% and 32% respectively in the 30-39 age category. The age profile for criminal legal aid is slightly younger with 31% of criminal legal aid clients aged 19 to 29 and 35% aged 30–39.

Changes to specific legal aid settings may have a more significant impact on some age groups.  For instance, any changes to legal aid will affect the growing number of older people with little to no income other than NZ Superannuation or assets. This may be reflected in the relatively small proportion of legal aid clients over 65.  Just 6% of civil and family legal aid grants are made to legal aid clients over 65.

Changes to legal aid may also impact older people with responsibility for dependent whānau. Grandparents raising grandchildren often face considerable legal costs associated with applying to the court for guardianship and navigating legal systems.  Māori whānau are overrepresented within this group.   

Changes to legal aid settings would be likely to have a disproportionate impact on disabled people. Disabled people are more likely to experience legal problems which impact their everyday lives. Results from the 2023 Legal Needs Survey show that, of the disabled people surveyed, over half (54%) had experienced a legal problem in the past year, compared to almost a third (32%) of non-disabled people. Enduring legal problems, rather than seeking to resolve them, can lead to stress, anxiety, and fear for disabled people and other potential legal aid clients.

There are significant data gaps across the legal aid scheme concerning legal aid clients. It is expected that improved collection and analysis of demographic data across the legal aid system will be a key recommendation from the current triennial review.

Legal aid providers

Legal aid contracting arrangements involve a mixture of publicly provided services through the Public Defence Service (PDS) and contracting individually with private lawyers. PDS lawyers receive a salary and only provide criminal legal aid services. Contracted private lawyers may provide legal aid services across all three categories of legal aid. Private lawyers are paid on a system of fixed fees or hourly rates, depending on the type of case.

The legal aid scheme is under pressure 

Financial pressure 

Legal aid is demand driven and the cost of legal aid has historically increased year on year. Expenditure in the legal aid appropriation has increased significantly in the last five years and is expected to continue increasing. Legal aid expenditure increased 59% between 2018/19 and 2023/24, rising from $179.6m to $285.8m.  By jurisdiction, over this period the cost of criminal legal aid increased by 72% ($69m), the cost of civil legal aid[5] increased by 146% ($8.9m), and the cost of family legal aid increased by 50% ($23.4m).  In addition to increasing overall cost, the cost per finalised legal aid case also continues to rise.

The costs of legal aid have increased as more cases progress through the courts, often involving more court events per case and taking longer to resolve. There have also been increases in the cost of third party and specialist reports (including alcohol and other drugs, and mental health reports). Recent changes to the scheme to improve access to justice, which included changes to eligibility and remuneration increases for legal aid lawyers, have also increased costs. 

The amount of legal aid debt established each year is generally low when compared to the total spend on legal aid cases each year. In 2023/24, $50.80m was established in new debt, compared to a spend of $270.22m on legal aid cases (18.8%). The amount of debt repaid each year is also relatively low. In 2023/24, 13.2% of debt was collected ($24.2m was repaid of the total $233.7m in available debt to collect).

Sustainability of the legal aid workforce

Over the last 5 years the number of approved private legal aid providers has increased, although in some areas of law the number of lawyers taking on new cases has declined. The numbers of active criminal legal aid lawyers may be steady, however the number of active legal aid lawyers is declining in other areas, such as family, employment (civil), and ACC (civil). This proportion is particularly low for civil legal aid, where only a third of the lawyers approved to provide legal aid accepted a new civil case in 2023/24. In some regions non-local providers are also relied on to take legal aid cases due to a shortage of providers.

The legal aid profession consistently raises issues about the sustainability of legal aid and the barriers that lawyers face in providing legal aid services. Legal aid providers have expressed that the scheme is not structured in a way that firms can run a sustainable legal aid practice and have identified administrative burden, low remuneration rates, and wellbeing and burnout as key to their dissatisfaction with the legal aid scheme.[6] Lawyers more generally have said that the operational costs of running a legal practice have increased for all practices by an average of 15.3% per year between 2021 and 2023.[7]

Court users may not get the legal aid assistance they need 

Between 2023 and 2025, there were several incremental increases to income thresholds that determine eligibility for civil and family legal aid. This included a significant 15% increase in the thresholds on 1 January 2023, followed by further 1.9% increases at the start of the following three financial years.

Ongoing constrained eligibility for legal aid creates significant risks for access to justice. Income thresholds for legal aid are not scheduled to increase again after July 2025.  Due to wage inflation, the proportion of the population who are eligible for legal aid will decrease from the middle of this year.  Family and civil legal aid eligibility thresholds have begun to intersect with some measures of poverty, meaning that some applicants who are considered to be living in poverty are no longer eligible for legal aid.[8]

Ongoing constrained eligibility is also likely to be influencing the growth in the number of self-representing litigants. The New Zealand Law Society’s 2021 Access to Justice survey suggested people’s inability to obtain legal aid representation is evident in the number of people who are unrepresented in cases.[9] Self-represented litigants face problems in court such as understanding evidential requirements, identifying legally relevant facts, and dealing with forms. These struggles may lead self-represented litigants to take more time in court, causing delays in the court system as well as unsatisfactory outcomes for themselves.

Both the number of self-represented litigants and proportion of active cases involving a self-represented litigant have increased in recent years.[10] From June 2018 to June 2023, the number of self-represented litigants increased from 6% to 12% in the family jurisdiction, 1% to 3% in the criminal jurisdiction and 52% to 72% in the civil jurisdiction.

There may be inefficiencies in the legal aid system that are affecting criminal case timeliness

Initial analysis suggests that legal aid cases may be taking longer to progress through the criminal court than non-legally aided cases.  

Analysis of Criminal District Court cases between 2014 and 2023 shows that, when compared to non-legally aided cases, both private and PDS legal aid cases have overall more events and adjournments, take longer to complete where cases are less serious, but can be quicker or equally long for more serious cases.[11] As with non-legally aided cases, there are likely to be a range of factors influencing the time that a legal aid case takes to be completed.  This could include the time taken for legal aid counsel to be assigned and delays in the availability of court fixtures.

While it may be unclear what is driving current timeframes for legal aid cases, changes to legal aid settings have the potential to positively impact timeliness concerning these cases.

Proposals out of scope

Eligibility thresholds

Eligibility thresholds that apply to family and civil legal aid, but not to criminal legal aid, have begun to intersect with some measures of poverty, meaning that some applicants living in poverty are no longer eligible for legal aid.  However, current proposals do not include increasing these eligibility thresholds. This is because civil and family legal aid providers are already struggling to meet demand and we think we should attempt to address provider shortages before considering increases to eligibility thresholds.

Barriers that survivors face in accessing legal aid for civil proceedings

Survivors of historic abuse in care can use out-of-court processes to seek financial redress for the emotional, physical, sexual, or neglectful harm they experienced. Alternatively, they can choose to take a Crown agency or faith-based institution to court to seek redress.

The RCOI found that civil litigation remains the main alternative to the out-of-court claims processes for financial redress. However, they identified barriers that survivors face in accessing legal aid for civil proceedings regarding abuse and neglect in care, including means testing criteria, charges over property, and repayments. The Royal Commission recommended the Government review the Legal Services Act 2011 to remove these barriers and the Minister of Justice confirmed that the recommendation will be considered at part of this review of legal aid.

Further work has identified that the legal aid system currently treats historic abuse claims differently to other civil claims, and many of the perceived barriers have, in practice, been removed.

Under the Legal Services Act, survivors of historic abuse in care must meet the same criteria as those seeking legal aid for other civil proceedings. They must be able to show that they meet the income thresholds, that the case has merit, and that they have reasonable prospects of success. Survivors are also legally required to make repayments.

However, in practice the Legal Services Commissioner treats anyone seeking legal aid for alleged historic abuse as having reasonable prospects of success despite the significant legal barriers to the success of these proceedings. Additionally, they are generally not expected to make repayments. Instead, a proportion of these costs are met by the agencies and institutions from which redress is being sought, or by the other party in the proceeding, and the remaining balance is written off by Legal Aid Services. Legal costs for costs for survivors of abuse in state institutions who are not eligible for legal aid are met by the agencies and institutions from which redress is being sought.

As many of the perceived barriers have, in practice, been removed for historic abuse cases, the Minister of Justice has decided that further work to remove barriers to these proceedings as part of the review of legal aid is not required.