Employment Law and Criminal Procedure Changes


United States Supreme Court90-day trial

The 90-day trial period that was previously limited to employers with 20 employees or less now applies to all businesses. Despite all the commotion about it, it is unlikely to actually negatively affect most people. Employers are not going to start hiring people for 80 days just to fire them then rehire for the position and retrain someone new. They’re still going to try to get the best person for the job and get it right the first time. Some employers are purposely not using 90-day trials because they think it will create lax recruitment procedures, but that doesn’t seem likely. New Zealand Institute of Economic Research’s study seems to show that smaller businesses using the 90-day trial had increased hiring activity.

In the Stokes Valley Pharmacy case (pdf) among other recommendations is that the employer gives feedback in a structured way during the trial. Successfully navigating the 90-day trial process isn’t exactly straightforward for businesses and a number of employers won’t try to use it for fear that they’ll stuff it up.

Medical certificates after one day of sick leave

Brought in with the 90-day trial period is the ability for employers to ask for a medical certificate after an employee is off work for one day. It doesn’t seem like employers will start asking for medical certificates without reason. Most are reasonable and realize that a visit to the doctor that day, if at all, is not always possible. This will probably only affect people if their employer is suspicious of their sick day use.

Union access to workplaces

Union representatives now have to request access to workplaces instead of just rocking up and going in. Businesses have one day to respond to a request for access and another to provide a reason if they refuse access. This seems a long time to just get an answer for two simple questions “can we have access?” and “why?”.

A lot of union members work in the public sector—PSA represents public sector workers and is the largest trade union in New Zealand. Union access won’t become an issue in those workplaces. This will mainly affect workplaces like supermarkets and hospitality related workplaces. However it seems like a lot of the time a visit might not be necessary—newsletters can always be posted or emailed out to union members.

Two arguments put forward by employers were that union visits will affect workers’ productivity and that by allowing access to union representatives workplace security is affected. Neither seem like very good reasons. Union representatives are likely to be responsible and union visits are unlikely to be the only distraction throughout the day. Other third parties like the water guy, the photocopier girl and the cleaners are given access to the workplace, and representatives can always be escorted.

The majority of employers are going to allow visits so this change also seems unlikely to affect most people.

Jury trial threshold

New Zealand’s jury trial threshold at three months or more imprisonment is one of the lowest in the western world. Other countries are up there at a charge having to have a penalty of five years imprisonment or more before the accused can elect trial by jury.

The Criminal Procedure (Reform and Modernisation) Bill plans to change the jury threshold from three months to three years—an offence would have to carry a penalty or three years or more for the accused to elect trial by jury—in an effort to speed up trials and save money.

Juries are an important part of the justice system. Statistically a jury is more likely to acquit than a judge is. This isn’t a bad thing. Juries force lawyers and judges to speak in plain English. The jury stands between the state, the accuser and the accused. Common sense ordinary New Zealanders are able to decide when it would be wrong to convict someone of a crime. They “round off the harshness of the justice system”. Money would be saved for an uncertain outcome. Judges will be busier and will have to provide careful written decisions. There will be delays because of reserved judgements. Other countries that have higher jury thresholds have more judges than New Zealand does. A change of the jury threshold from three months to three years requires public input and discussion.

If three months is an arbitrary number, three years is too. As a community there needs to be discussion and we need to ask ourselves at what point do we think an offence or prison sentence becomes serious enough to warrant trial by jury.

Legal aid

Changes planning to be phased in from October include making single people who earn over $22k a year and an adult with two dependants who earns over $50,934 a year ineligible for legal aid for “less serious criminal cases, most of which cost less than $650.00.” People who earn more can still get legal aid if they prove that they can’t pay for their lawyer or that their case is likely to be expensive.

If someone proves that they need the money they can still get legal aid so that change isn’t a huge deal. A more worrying change happened last year, when legal aid clients lost their right to choose a lawyer for charges that carry a prison sentence of less than 10 years.

Can I choose my legal aid lawyer?
The Agency will choose your lawyer for category 1 and 2 cases (these cases include criminal charges that carry a possible prison sentence of less than 10 years)

Depending on income and assets, clients can be required to pay back some of the legal aid money, making it more like a loan than a grant. The Criminal Bar Association said “If a client is required to repay a loan it is only fair that they should be able to choose their lawyer.” A woman might prefer a female lawyer and others might want to choose a lawyer who speaks their first language. Personal choice is removed. Some people might not mind who their lawyer is, but some people have a lawyer who they have rapport with and who they trust. Their lawyer understands them and their issues.

This change supports the expansion of the Public Defence Service which is run by the Legal Services Agency who also assign legal aid cases. They’ll be able to run at their full capacity of 33% of legal aid cases because of these changes.

John Anderson from the Criminal Bar Association said that expanding the PDS will cost more money, that “The Public Defence Service is more expensive than independent lawyers. In 2010, the PDS cost $1612 per criminal legal aid case, whereas lawyers as a whole cost $1343 per case.”

Some legal aid lawyers were taking on too many cases and this is meant to solve that. The Legal Services Agency are able to look at each lawyers legal aid caseload and could have made a decision as to whether someone was taking on too many cases without having to make changes to lawyer choice.

About six months ago anyone on criminal legal aid could specify their lawyer. Now that’s been removed for category one and two offences. Where will we be in six more months?

If 10 years of your freedom was on the line, would you like to be able to choose the person defending you? I would.

Image credit: Phil Roeder

2 thoughts on “Employment Law and Criminal Procedure Changes

  1. Firstly, isn’t there some provision for having the same lawyer if a client already has an established relationship with one lawyer who knows the background? Or is that only in special circumstances?

    Secondly, any comment on the changes to family legal aid that are also on the way (estimated for 2012)?

    1. Hi

      I checked with the LSA and they say the only exception is if someone already has an open case and is being represented by a legal aid lawyer for that matter. They can then choose to have that lawyer represent them for a new category one or two offence.

      Regarding family court changes it’s interesting that the changes are mainly focused on cases involving children. New Zealand performs badly compared with other OECD countries in terms of child maltreatment. Those children that aren’t looked after in the family court system are going to be requesting legal aid themselves when they’re older.

      I also think it’s important to remember that a lot of disputes over children’s care are resolved outside of court (I’ve heard 90-95%). The examples put forward of parents debating petrol costs and overseas trip lengths wouldn’t be a typical family court case involving a child.

      Everyone would agree that parents should be encouraged to solve issues outside of the court system, but I think the current merits test is fine—that the interests of other people affected by the proceedings are taken into account when granting legal aid. Simon Power says that “the involvement of a child in many cases has been the determining factor” and that “the outcome is not always in the best interests of the affected children”. I don’t interpret ‘take into account other people’ as ‘grant legal aid whenever a child is involved’. Maybe instead of scrapping the ‘think of others’ provision it could be amended to say that a child being involved doesn’t immediately mean legal aid should be granted. Either way the LSA is, in effect, deciding which cases will actually go to court, which should cause concern.

      The means test change (limiting the special circumstances test for family and civil proceedings to expensive cases) is interesting because it seems to assume that people won’t ever legitimately be unable to afford less expensive cases, as opposed to criminal proceedings where if you can prove that you legitimately can’t afford the costs you can still get legal aid.

      The $100 user charge for family and civil proceedings is better than the $440 2010 equivalent 1969 charge, but is possibly an unneeded barrier to justice. Antony Mahon on Breakfast said that it’ll punish the people who need legal aid most and I think that’s really important to keep in mind. He used the examples of beneficiaries and people like grandparents who are seeking care of children because of neglect. The charge doesn’t apply to domestic violence cases, but that doesn’t necessarily mean it wouldn’t apply in cases of neglect.

      Requiring parties to contribute to the cost of the lawyer appointed for the child seems okay on the surface, however there’s no detail about how it’d be split between parties (based on income?). What if one parent doesn’t have the ability to pay? It only seems to exclude cases of “serious abuse or violence”, not all cases of abuse and violence.

      At the moment the court appoints a lawyer for the child unless “the appointment would serve no useful purpose”. So a lawyer is appointed when there is a useful purpose in appointing one. It’s proposed that lawyers would be appointed based on the “seriousness” of the case—violence or abuse. There is a provision for a lawyer to be appointed “if the court is satisfied an appointment is in the best interests of the child”. All children are involved in the court because of difficult situations and are vulnerable, I think in 99% of cases a child being appointed a lawyer is in the best interests of the child and would serve a useful purpose. It would be concerning if the current rule was changed, but I think judges etc. would have enough common sense to appoint a lawyer most of the time.

      Thanks for your comment.

      -Matt

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