Anne Opie and Dave Smith

The objective of presenting this paper is to discuss recent approaches taken by the Legal Services Board to the assessment of the unmet legal needs of disadvantaged communities, and to discuss their different knowledge outcomes. One approach to the assessment of need has been carried out via a national survey; another has focused on developing and establishing five pilot projects in very disadvantaged regions. In their turn, the pilot projects have led to the production of locally-researched needs assessments and evaluations (to date) of two of the pilots. However, before discussing aspects of these very different modes of needs assessment we present a short account of some of New Zealand’s social and demographic factors generating highly diverse legal needs, and discuss the problematic role of the District Legal Services Committees (DLSC) in needs assessments. Then we discuss the two modes of assessment and their knowledge implications for the Board and for local communities. Finally, in the light of dwindling financial resources, we reflect briefly on some implications for the future.

Changing social and demographic features of New Zealand mean that the populations who are likely to be the Board’s clients are those who are significantly socially and economically marginal, linguistically highly diverse, and have diverse legal needs.

The myth of New Zealand as a mono-cultural and egalitarian society has proved unsustainable. The representation of the mono-cultural society could not survive the Maori renaissance which began in the 1970’s; the representation of the egalitarian society, a representation that suppressed the marginalisation of Maori and other ethnic groups within the mainstream socio-economic domain, has died as a consequence of the last fifteen or so years of economic and social re-structuring of government institutions and successive governments’ re-defining the role of the state. Maori, New Zealand’s indigenous people or tangata whenua, who constitute about 15% of the population, have been particularly affected by government policies that have contributed to disproportionately high rates among Maori of school expulsions, unemployment, crime, incarceration and mental illness. While the establishment of the Waitangi Tribunal in 1975 provided some opportunity for some Maori groups to re-establish a more secure economic base, the Tribunal’s powers are limited to the making of recommendations to Government about the redressing of grievances and return of resources, and the distribution of resources that have been awarded to some tribes is an on-going and contentious issue within those communities as well as within some Pakeha communities.. However, the need to present well-researched cases to the Tribunal has meant that often very poorly resourced and at times fragmented groups are faced with major legal issues relating to confiscated land and the legality of land sales during and subsequent to the period of colonization, as well as challenging government’s right to dispose of Crown land under dispute in the Tribunal, in addition to a substantial range of other types of claims. As well as having legal needs pertaining to everyday life (consumer issues, inheritance issues, employment rights, benefit rights, issues relating to violence etc), many Maori therefore require detailed knowledge the Waitangi processes, and of the law as it pertains to the ever-changing Resource Management Act, the Maori Land Court, and land tenure and transfers.

Other groups, who have also experienced considerable hardship as a result of the structural changes in New Zealand society, are Pacific Islanders, from Samoa, Tonga, Fiji, Tokelau, Niue and the Cook Islands. Although most live in the Auckland area (Auckland is the world’s largest "Polynesian" city), there are substantial numbers living in Wellington and Christchurch, as well as smaller numbers scattered throughout small New Zealand towns, even as far south as Invercargill. One report has suggested that their legal needs are high in relation to contracts and loans (Saville-Smith and McKay 1996), in addition to which they also require culturally sensitive services and a developed understanding of an unfamiliar justice system.

In the past, New Zealand’s immigration policy meant that most migrants were from the UK and the white Commonwealth countries (including as South Africa during its period of arpartheid). Excluding migrants from the Pacific Islands, more recent migrants, however, often arrive as refugees. New Zealand has taken groups from Asia, Africa, and the Middle East, albeit on a smaller scale than has Australia. These groups are centred mainly on the larger cities. Their legal needs are likely to relate to their migrant status, education and to advice in relation to consumer rights, property and commercial dealings. They are also likely to face issues relating to affordability of, and appropriately culturally oriented services (Saville-Smith and McKay 1996).

Although the distribution of New Zealand’s population has been characterised over this century by the continuing drift to the cities (particularly to Auckland ), there are still significant numbers of people living in small, scattered and often quite isolated rural communities, with few even traditional legal services. The needs assessment for Tai Tokerau (Pitman 1999), for example, notes that of the 46 law firms in this region, 30 are in the main city, Whangarei (population 46,000), with the result that there are minimal formal legal services in smaller towns to the north, while in the small towns in the Tasman District and in the Gisborne area have to rely on the Police in the first instance for assistance with legal issues, a procedure that is often not satisfactory or appropriate for the police or the enquirer. Equally, the national Report on Women’s Access to Justice (Morris, forthcoming), has noted how women in rural communities often feel unable to make use of the small number of available formal legal services because of the ease with which their private business enters the public domain (someone sees them entering the lawyer’s office and tells someone else, who tells …). Ensuring that people in such communities can get the assistance they need with relative privacy raises issues about location of key services in small communities and about the most cost-effective means of providing advice and information.

The Report on Women’s Access to Justice asserts that women are less able to access justice than are men, as most women not only earn less than most men but are very disproportionately over-represented in the very low income groups (a factor that particularly affects Maori women). This report, and the report on Maori women’s access to justice (Law Commission 1999) further emphasise how many women have minimal knowledge of the legal system and are anxious about cost factors. Many are unfamiliar with the legal aid scheme and, despite their income levels, may not be eligible for legal aid. Pursuing a case through the courts may well place them in substantial debt. Both Maori and Pacific Island women have spoken forcibly of the cultural and linguistic barriers between themselves and (male) Pakeha lawyers, stating that they believe they could speak more comfortably with Maori/ Pacific Island lawyers.

The Board, then, has a responsibility to deliver appropriate services and information to culturally and linguistically diverse groups, some with minimal knowledge of the law and structures of legal services, in a context where traditional legal services are priced beyond the ability of most New Zealanders to access them as median incomes for males are $22,000 and $12,000 for women.

• identify legal needs in its district
• monitor the provision of legal aid in its district
• establish community law centres within its district and monitor their performance
• administer the Police Detention scheme and any other legal assistance scheme within its district
• oversee the processing of applications for criminal and civil legal aid
• make recommendations to the Board with respect to any matter relating to the provision of legal services, and
• exercise other such functions as are conferred on the committee.

The committees are intended to have a high community profile, the assumption being that they will therefore be well-positioned to explore ways in which legal information services could be developed in ways going beyond a lawyerly focus on legal aid and duty solicitors. The committees exist, however, more on paper than in reality. They have slim resources and meet for about an hour once a month. They are often are singularly ill-informed about issues Parliament appears to expect them to be inherently knowledgeable about. When the researchers associated with the Women’s Access to Justice (Morris, forthcoming) were interviewing District Legal Services Committee (DSLC) members, it became apparent that some of these members knew less about the structure of the Legal Services Act and the funding that might be available pursuant to it than ordinary members of the public.

Although DLSCs are intended to be continually monitoring legal services in their districts through assessing the effectiveness of available services and identifying gaps, this has simply not happened. For reasons that are not clear, the committees in New Zealand’s most disadvantaged districts have been extremely reluctant to undertake the statutory needs assessments of those areas (required to even begin the process of getting a law centre established). In order to counter/explore their claims that these areas had minimal (or at least well met) legal needs (claims which have not stood up to any scrutiny), the Board has three pilot projects running, one of which is about to become a community law centre, and two additional pilot projects about to start, all in very deprived, often fairly isolated regions, with high legal needs, few more traditional legal services outside of the main town in each area, and little easily accessible legal information or advice.

Over the last couple of years or so, the Board has adopted four different approaches to assessment of unmet legal need in New Zealand in order to arrive at a fuller understanding of the populations or groups to whose legal needs the Board has a wide-ranging statutory obligation to respond. One mode of assessing unmet legal need was a national needs assessment survey commissioned in 1996 and completed in early 1999. A second mode is via the development of the pilot community law centres. The third is the needs evaluation completed for of the two pilot projects, each carried out by local people, with extensive local knowledge and entrée to their community (and with different degrees of research skill). The fourth is the evaluation, largely carried out by the pilot staff, of the work they have done in the context of the pilot’s initial objectives and the areas of need uncovered as a consequence of that work. The evaluation also reviews the appropriateness of the pilot’s structure and makes recommendations about change, should the Board decide to fund a fully fledged CLC. These modes of exploring unmet need produce differently nuanced accounts of who the "needy" and inevitably, poorer and more marginalized social groups are; of how broadly defined categories of need, such as "legal needs of younger people" or "legal needs in relation to the employment contract act" play out in practice; and of the ensuing structure and focus of local services. These accounts, then, draw on very differently constituted knowledge, differently positioned in relation to the researched communities, so providing different ways of "knowing" communities’ needs. The next section of the paper, then, discusses the national survey as one mode of "knowing", and it takes the establishment of the Bay of Plenty pilot project as exemplary, and embodying the general principles, of the other modes of consultation and assessment in relation to process, location and generation of knowledge and resulting is a shift in access to power and resources by marginal communities.

There were three main reasons for deciding to undertake a national survey of unmet legal needs. Since its inception, the Board (through its District Legal Services committees) has commissioned a number of needs assessments required by statute to be completed before a community law centre can be established. However, it has been difficult to make comparisons between like areas or to get a national perspective on unmet legal needs because:

• not all the 19 districts have commissioned needs assessments, including those aforementioned areas where it could be expected that unmet legal needs would be high because of the socio/ethnic/economic structure of the population
• those assessments that have been completed since the Board’s inception have been completed at different times. Communities are not static, and processes such as gentrification or its opposite, the growth of new suburbs distant from services; the emergence of new needs to which the original assessment could not have referred make comparisons and evaluation of extent of needs between areas difficult
• although a largely common methodology has been followed in the needs assessments, the quality of analysis and report writing has varied very considerably. Overall, the assessments have lacked necessary detail and analysis of data.

In commissioning a national survey undertaken by the Institute of Criminology at Victoria University of Wellington (Maxwell et al. 1999), the Board had three objectives. These were to:

• review and analyse international research on unmet legal need as how need is conceptualised affects the determination of the focus and structure of services
• identify any regional differences of and in unmet legal need
• identify, as a result of the analysis of the above two points, the ensuing policy issues

To ensure the statistical validity of the research findings, the interviewers approached 7646 households, interviewing 5431 respondents aged 15 years and over. Respondents ranged from professional people to beneficiaries. A 71% response rate was achieved. Cost and other factors excluded the possibility of the interviewers commenting on the ethnic and other factors of the 29% who either refused an interview or were uncontactable.

The Board considers that the value of the research lies in three domains.

The survey sought to gain information on a wide range of problems which have a "legal" component – in other words, it did not want to settle for a limited, traditional definition of "legal" concerns focusing on problems that are necessarily resolved through the medium of a court or by lawyers. It asked about 27 everyday types of problems, ranging from traffic accidents, consumer issues, employment-related issues, issues of violence in families, debts, insurance claims, benefit or health-related problems, problems with children, problems with government departments, local and regional bodies, etc. What this list of mundane enough problems does is to highlight the extent to which access to legal information and having the skills to respond to an ever-expanding range of issues with a legal component that impact on peoples’ everyday lives is an increasingly necessary part of living in this society. Yet, while there is an increasing requirement for some degree of legal literacy/ knowledge, or the ability to pay for legal advice to facilitate survival, New Zealand remains a society with a low percentage of those with some form of tertiary education (15 %: 6% of women and 9% of men) where 32% of women and 30% of men have no formal qualifications and where 37% of women and 24% of men receive personal incomes below $10,000. Taking primarily a caseload approach to respond to unmet legal needs is not a cost-effective method of meeting ever-expanding communities’ need for legal information and assistance. What this highlights is the need to develop modes of service delivery that are able to augment communities’ knowledge of legal issues.

The survey findings suggested that people with legal needs approach groups, agencies and organisations most frequently (55%), followed by friends and family (48% and most likely to be consulted first) lawyers (29%) and "knowledgeable and influential" people (25%). What these figures highlight is the importance of informal sources of advice and the importance of creating modes of service delivery that ensure quality and accurate information and advice and support about how to proceed accessible not just in the cities and towns but also in the small, more isolated and deprived communities. This finding, then, focuses attention on CLC’s outreach services and on the significance of law-related educational programmes.

Few respondents relied on printed and visual information for advice. There are obviously a number of issues as to why this might be, including how widely relevant material is distributed. There are two points here. One is that it is not easy for organisations to keep abreast of and maintain comprehensive stocks of information resources. In light of the current funding crisis for CLCs, and the need for increased collaboration and pooling of resources, this suggests that creating of some form of national clearing house to undertake this role could be valuable. The second is that groups approaching the Board for funding to develop such resources will need to outline very clearly who their target audiences are, how such information will be able to be accessed over time, and what their longer-term distribution policies are.

As noted earlier, over the last year the Board has set up three pilot projects in largely rural, and deprived communities, characterised by very high levels of unemployment, people in receipt of other benefits, and with substantial Maori populations. Two more are about to start. The establishment, as well as the operation, of the pilots has been a highly valuable process of knowledge construction and exchange. In two pilots the Board has employed a consultant with legal training and extensive knowledge of and experience in CLCs and community development to work with local people to facilitate the early development process through assisting in the initial identification of key players, establishing a steering committee, facilitating meetings, providing information about different models of service, and advising about the development of the proposals and budgets.

On one plane, such work can be described, somewhat smoothly, as consultative. This word, however, does not sufficiently access the complicated and mutually knowledge-generating processes which occurred. The development process began with the worker contacting key people in the area: community advisors attached to the Department of Internal Affairs, iwi (tribal) workers, people in community houses, in women’s centres, and so on. Her role was to outline the rationale for the pilot, describe the Board’s role in funding, discuss how the local person viewed the need for and feasibility of a pilot, establish what needs her informant saw as predominant, and to ask for further local community contacts. From the start, the worker’s role was to impart information, while also gaining a considerable amount of local knowledge about local communities in relation to legal needs, the identification of key players, and issues facilitating or constraining the pilot’s development.

Part of the objective of the consultation was to encourage the development of community ownership of the pilot. The local groups set up a collectively owned steering group, with a representative from each of the six iwi and the community representative on the DLSC. Each iwi representative reported back to their iwi-based support group, so reinforcing their connection with that community, and ensuring each group’s knowledge and continued support for the pilot, thus setting in place a dual process of accountability and knowledge exchange. The work of the steering committee was to determine an agreed structure: the role of the coordinator; the relationship between the outreach workers, and between workers and the coordinator; the structure and location of the outreach services; the focus of the work; the overall budget; and the division of the budget between participating iwi. The meetings set in train a recursive process of knowledge generation and knowledge intersection between the worker, the steering committee and the local communities. The resultant structure reflects both issues of local ownership and the resolution of local tensions between iwi. There will be a coordinator for the whole pilot, whose role will be focused on information dissemination, administration and supporting the workers. The budget for the whole pilot has been equally divided between all participating iwi, and each iwi will manage their own budget and employ their own worker. Each worker will focus on identified issues peculiar to their locality (all, though, with a considerable emphasis on law-related education rather than being casework focused). The structure, while reflecting differences and tensions between iwi, nonetheless, gave considerable autonomy to each. Rather than being centralized and city or town-based (the old style CLC), this pilot has a locally-informed and fluid structure. However, as the development process has progressed, the groups have taken a more cooperative approach, deciding to seek to appoint workers whose skills complement each other, so that they can respond to needs beyond those of their own iwi/community.

The knowledge generated by the national survey and by the establishment of the pilot projects and the positioning of disadvantaged communities in the processes of knowledge generation are of quite different orders. The analysis in the national survey operates at a very considerable level of generality. The findings are in no sense "owned" by the multiple individuals who generated them; nor indeed are they particularly accessible to them. At best, the survey directs attention towards broad categories of people as being "in need". It identifies, for example, lack of knowledge in relation to different areas of legal need but it does not discriminate further in relation to more specific types of knowledge, barriers to knowledge, and types of issues with which educationally-focused programmes may have to contend.

The establishment of the pilots have relied on very different processes of knowledge generation. This process accords value to local, nuanced and, in Western knowledge hierarchies of knowledge, that knowledge that is typically marginalized , ie that of "unknowledgable" people. It requires the intersection of that local knowledge with other ways of knowing, so that each way is augmented as a consequence of their intersection. The resulting, expanded knowledge remains to benefit the participating communities and it has also informed developments beyond them, in that the work of the first established pilots have informed the developments of subsequent ones, and will be useful in re-assessing the structure and work of some of the more established CLCs. Moreover, the pilots’ evaluations and needs assessments allow for a further process of knowledge generation critical to the construction of educationally focused programmes. The Nelson needs assessment (Mitchell Research, forthcoming), for example, does not draw attention to (undifferentiated) needs of young people for legal information in relation to legal rights. Instead, it illustrates how factors including an almost total absence of knowledge of the most basic legal issues, misinformation, erroneous advice, bravado/ "attitude", a "mates’" culture and "whakama nunui" (deepest shame) can result in some young people having contact with the law leading to the worst possible outcome, with possible life-long effects.

What, then, of the future? What can we say we have learnt from the survey and from the pilots to date about effective modes of service provision? As noted, the survey suggested that while people with legal needs approach groups, agencies and organisations most frequently, they also rely very heavily on informal sources of advice. Further research (possibly done at the local level) may well be able to provide fuller information on specific points of contact within the different ethnic/local communities. While we do not have much such precise information at the moment, the importance of informal, local contacts as disseminators of information suggests that the Board’s rejection of a suggestion by the Law Commission that it should become, in effect, a ministry of legal information, and its adoption instead of an entrepreneurial role, funding many disparate groups in the community, seems valid. The objective of such funding is to increase the numbers of those with some degree of para legal training able to provide people with the appropriate information and/or direct them to the first level of services, or to put them in touch with the less formal but nonetheless well recognised forms of dispute resolution. One of the obvious benefits of the pilot schemes is that they provide easily accessible, local points of advice and support to act on, rather than ignore the problem (in the hope it will go away). Respondents involved in a needs assessment argued that such processes assist individuals and communities to take a more proactive approach to the issues affecting them (Pitman 1999).

The pilots are able to experiment with different approaches to meeting community needs for legal information and education. For example, in the lead-up to the Taranaki project, the steering committee identified a wide range of community-based potential educators, to whom the educationally focused pilot can offer further training. It also identified a range of support organisations, with which it may have a coordinating role, including raising their awareness in relation to funding possibilities. It is quite possible that education and information models of service will remain predominant in at least two pilot project areas, and the Board is keen to encourage further experiments to encourage other new forms of centres, consistent with the Board’s ability to fund them. Despite the legal restrictions on the funding of law centres, the Board has reasonably wide powers enabling it to channel education funding through district committees. As a consequence, the Board is increasingly enhancing existing CLC funding bases with top-up funding from reserves for "education projects". Many of those projects are now being carried on using law centres in managerial or entrepreneurial roles in a wider partnership with a range of legal needs suppliers (schools, radio stations, newspapers, trade unions, pro bono lawyers, district law societies, universities and religious and welfare organisations).

Just as the UK is now, in the wake of the Woolf Report, setting up the community legal service with a wider discretionary distribution of resources to give effect to regional and local priority setting so New Zealand is also evaluating whether the spending of $100m on legal aid at a time when the fast growing CLC movement and other services are beginning to falter is a defensible use of funding. It seems clear that over the next year or two the Board will be focusing on the processes of evaluation and re-evaluation, redefinition, redistribution, reallocation, lobbying, triage and fundraising!