Matthew Taylor

90-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}