It is five decades since a passionate entomologist and trade unionist got together in Nelson to help young Māori navigate the legal system and get more equitable outcomes. Now a robust national scheme, LawTalk speaks with Dr Oliver Sutherland ONZM (who was there at the beginning!) and others on the frontline to share the rewards and challenges of the scheme.
Lawyers are usually the ones who change the legal profession but occasionally a passionate entomologist and trade unionist get involved and make a mark.
Five decades ago, Dr Oliver Sutherland and John Te One Hippolite, the Secretary and Chairperson of the Nelson Māori Committee, saw how the legal system was treating young Māori in Nelson and decided they needed to help. This was the beginning of the New Zealand duty lawyer scheme.
The genesis of the national scheme started in Nelson, where before legal aid, only 18.5 per cent¹ of Māori defendants had lawyers, shown by data collected by Dr Sutherland between 1970-71, who called the problem “institutional racism”. Despite not working in the profession, Dr Sutherland and Hippolite took up the fight to improve legal representation.
The pair recruited Nelson lawyers to provide free legal representation for defendants in the District Court. The scheme was a success, and within a year 79.2 per cent of Māori defendants had lawyers.
With the addition of legal aid fewer Māori were imprisoned, and there was an increase in not guilty pleas and minor punishments. The same court, the same magistrate, but different outcomes.
Other local schemes began to proliferate, including Christchurch, Wellington, Hamilton and Tauranga. In 1973, the Law Society joined in calling for a nationwide scheme and began discussions with the Government.
Then in 1974 national duty lawyer scheme was established by the Hon. Dr Martyn Finlay when he was Minister of Justice. Within a week of its announcement, over 100 lawyers put their hands up to volunteer.
Today the scheme sits within the Ministry of Justice portfolio, administered by the office of the Legal Services Commissioner and the Public Defence Service, (PDS).
PDS currently operates in the 15 largest district courts. Smaller courts, which lack formal management, are managed locally. At these courts, court service managers, staff, Legal Aid Services, and the duty lawyers work together to ensure the service is delivered effectively.
The current structure of duty lawyers is one that operates in both the PDS and non-PDS Courts with the latter being entirely covered by private practice.
A former duty solicitor, Judge Sellars KC presides at the Auckland District Court and having sat on both sides of the bench says, “criminal lists could not function without duty solicitors.” But the work is not easy and requires additional skills. Judge Sellars KC says duty lawyers need to be “excellent lawyers, but also very good social workers.”
Like an emergency department in a hospital, Judge Sellars KC says, duty lawyers deal with people who are often at the “lowest ebb in their lives, and most always in a very high stress situation, under the influence, or in shock.” This puts the duty lawyer on the front line, face-to-face with the full gamut of human emotions and circumstances.
“The human face that the duty lawyers give to the Court and the law is remarkable,” says Judge Sellars KC, adding that “ensuring the longevity of the scheme and the lawyers in it is an integral part of delivering access to justice in Aotearoa New Zealand.” From a Judge’s perspective, “a proactive, and hard-working duty solicitor makes the job of a judge a lot easier and for this, there is a high level of appreciation for the work undertaken by our duty lawyers.”
Though duty lawyers spend brief moments with each defendant, their work can dramatically impact that person’s future.
Wellington duty solicitor and barrister Janine Bonifant knows this well. Janine has worked with and for the Duty Lawyer Scheme in its various incarnations for the past 30 years.
Janine qualified relatively quickly as a duty solicitor. Starting out in Hawera, in the deep south of the Taranaki region, there was just one duty solicitor assigned for the area’s caseload, and “we just got on with it.” The work was hard and fast, and while that can make for difficult work, it also allowed for a large amount of experience.
“Having a senior lawyer around for support and collegiality of the senior bar made for an excellent environment for the young lawyer to learn and grow.”
Janine’s career remained within the criminal area of practice with time as a Senior Crown Prosecutor and then later as the Deputy Public Defender in Wellington.
No matter which side Janine was representing, she says, “the role of the duty solicitor is critical to what happens at first call and court level.”
As a veteran of the scheme and the criminal justice system, Janine believes the duty lawyer scheme to be at a “critical juncture right now.”
Janine paints a sobering picture of a system at breaking point. Many law firms now find the duty lawyer scheme commercially unviable, with funding failing to cover basic costs. “The duty lawyer scheme should not be relying on the goodwill of senior lawyers,” she argues.
Despite a pay rise in August 2023, duty solicitors remain significantly underpaid, even when compared to most legal aid work. “Working conditions can be challenging making it difficult to attract new or young lawyers to what is increasingly being viewed as a calling rather than a career,” Janine explains.
The workload is causing harm to the lawyers working in the field. “Burnout is very real as is the moral obligation to respond to every call, often to the detriment of your own wellbeing.”
The pressures are mounting. Duty lawyers face constant demands to take on more cases while managing late-night, early-morning, and weekend calls. The role has become increasingly dangerous since COVID-19, with escalating unsafe behaviours in court spaces.
Janine attributes these challenges to broader systemic issues: cuts in community funding, an overburdened mental health system, and increasing socio-economic pressures. “The interventions from community and government agencies that were previously available are now just not there.”
Yet despite these challenges, duty lawyers remain committed to their crucial role. “We help navigate people through a very stressful time,” Janine explains. “The work is intellectually satisfying, and we have the opportunity to make positive change.” The role requires a holistic approach, assessing not just legal needs but whether defendants require referral to community or government agencies.
The personal toll, however, is significant. “You can never clock off entirely,” says Janine. She emphasises the importance of self-care and maintaining work-life balance, though this often competes with the pressure to be available around the clock.
She notes the system currently relies heavily on goodwill and loyalty.
While there are many constants in the role of duty lawyer from those working across the motu, experiences differ. Christchurch based barrister Elizabeth (Liz) Bulger has worked across the regional courts in the South Island for the past 37 years. Liz was admitted to the bar in 1987 and like many of her counterparts, qualified quickly for the duty lawyer roster. For Liz this was just her third day in practice.
Starting out in Dunedin, Liz then moved on to Christchurch working the metro courts as well as appearing in the regional courts, which Liz continues to do today. The Courts on the West Coast are Greymouth, Westport and Whataroa, the latter closing in 2013. Liz quips that her temporary job on the Coast continues 23 years later!
On the topic of remuneration, Liz says "remuneration should not be the primary driver." For Liz, the work of the duty lawyer is a call to duty that she urges more lawyers to get on board with saying, “senior counsel owe it to the system to participate in the scheme at all levels and should be visible at all levels.”
Liz says the remuneration is not the “be all and end all and while it is a balancing act between the duty lawyer work and regular commercial work, the benefits and experience more than make up for it.”
Working on the frontline is not only an excellent training ground but also keeps seniors grounded as well as offering some interesting cases. Liz shares anecdotes of working cases on the Coast that are a slice of real New Zealand. “The variety of cases can take you from theft of a potato to loss of traction cases along with the usual drink driving and drug offences."
"Then you get a deep dive into the Fisheries Act when someone walks away from their whitebait net, then you learn something new about the provisions of the Conservation Act when an individual unwittingly removes an injured kiwi from a national park."
A training ground like no other
For the upcoming criminal lawyer, Liz regards the work of the duty lawyer as a “great training ground where the junior lawyer can work alongside senior counsel and learn a great deal on the job.” Outside of the Public Defence Service, duty lawyers dovetail in with NZLS CLE Ltd. This includes the Duty Lawyer Training Programme, which concludes with a qualitative evaluation of performance to ensure the quality of the scheme and those working in it. However, there is a real need for continuous training and improvement within the Duty Lawyer scheme.
Liz describes a “yawning gap,” of a missing generation that spans around 15 years and encourages younger lawyers to seek a duty lawyer work as part of their development as well as seeing more seniors return to rosters around the country.
Peter Hutchinson, Director of the PDS, has been a part of the evolution of the duty lawyer scheme, starting work with the organisation as a Senior PDS Duty Lawyer Supervisor in the Northern region.
“A well-oiled duty lawyer service will contribute greatly to improving timeliness in the court environment,” says Peter.
The last round of comprehensive reforms in 2010 marked a pivotal moment in the scheme, introducing dedicated PDS employed duty lawyer supervisors to oversee both private and PDS lawyers at Courts where the PDS operates – a change that brought more structure to the roster management system.
While recent years have seen significant capability and linguistic. A recent KPMG report, being worked through by an Advisory Group has proposed 25 recommendations for further enhancement.
Peter acknowledges we always need to be open to things we might be able to do better and looks forward to continuing to work with Legal Aid and the profession to explore ways to enhance the duty lawyer service.
Now the Duty Lawyer Scheme has marked its 50th anniversary, Legal Services Commissioner Tracey Baguley sees both cause for celebration and opportunity for improvement. “This milestone represents a fundamental cornerstone of access to justice,” she says, highlighting why the service has been a key area of focus for the Commissioner over the past two years.
Following the August 2023 remuneration increase, an independent review commissioned by Tracey delivered promising results. The June 2024 report confirmed the service’s effectiveness in providing legal advice to unrepresented defendants, while also identifying areas for enhancement through 25 specific recommendations.
“We’re working closely with an advisory group that brings together representatives from the legal profession, judiciary, and District Court,” Tracey says.
The recommendations, organised into eight categories, are already driving change. Immediate improvements are expected in rostering and onboarding processes, while collaboration with the New Zealand Law Society and PDS is strengthening both initial and ongoing training programs, with a new emphasis on wellbeing support.
A significant development is the Criminal Process Improvement Programme (CPIP), which introduces changes to duty lawyer operational policy. The programme, designed to address court backlogs and delays, enables same-day legal aid assignments for defendants’ first appearances. Already operational in Hamilton, Christchurch, Hutt Valley, and all Tamaki Makaurau District Courts, CPIP is set to expand across all Public Defence Service sites.
Over the last fifty years, the scheme has transformed outcomes for individuals, reduced inequities, and fought for fairness in the legal system. But the work is not done. Tracey says the industry needs to keep focused on continuous improvement and collaboration.
While significant challenges remain, this milestone is a reminder of the progress that can be achieved when dedicated individuals and organisations work together for a common goal. The journey ahead calls for continued collaboration, innovation, and investment to adapt to the changing needs of our communities.
Tracey expresses gratitude for the daily commitment of duty lawyers across the country: “Their dedication to this essential service cannot be overstated.”