Executive summary
This inquiry presented an
opportunity for the Committee to re-examine the state of legal aid, following
the previous Committee's report in June 1998. That report, the Inquiry into the Australian Legal Aid System:
Third Report, was conducted following the introduction of the Commonwealth
"purchaser/provider" funding agreements in 1997. At that time, the
Committee was limited in its ability to assess the long-term impacts that those
changes had on legal aid.
This inquiry allowed the
Committee to survey the legal aid landscape after nearly eight years under the
"purchaser/provider" funding model. In addition, some serious issues
in relation to legal aid and access to justice more generally were drawn to the
Committee's attention.
Funding
This report begins with a
consideration of the funding of legal aid, including the levels of Commonwealth
and state/territory funding, the funding model used by the Commonwealth to
allocate legal aid funding, and the implications of having a strict Commonwealth
and state/territory divide for the application of legal aid funding.
The Committee heard
significant criticisms of the current Rush/Walker funding model, particularly
in relation to components such as the 'suppressed demand factor' which result
in more funding for some jurisdictions. Accordingly the Committee recommends
the model be reformed.
The Committee also
recommends a return to the co-operative model of funding that was in place
prior to the Commonwealth Government's introduction of the "purchaser/provider"
model. A return to cooperation between the Commonwealth and states/territories
would reduce administrative costs and bureaucratic difficulties that people
face where matters do not clearly fall within one jurisdiction. More
importantly, such a move signifies a cooperative approach to meeting the
obligation that a civilized society owes to its citizens in providing access to
justice, particularly to those who are already disadvantaged.
The Committee has also
considered the role of some specialist legal services. During its previous
inquiry the Committee heard that the Environmental Defenders Office, was
prevented from using the Commonwealth funding it receives for litigation
purposes. The Committee recommended that the restriction be removed, and in
light of further evidence to this inquiry, repeats that recommendation.
The Committee also heard
evidence suggesting there is a need for a national forensic institute to ensure
defendants in criminal cases have access to forensic services, and supports that
proposal.
Finally, the Committee was
concerned that when new legislation increases the emphasis on crime and law
enforcement, there appears to be no supplementary funding to legal aid
commissions to counter increased demand for their services. The Committee
considers that a legal aid impact statement should be required for such
legislation and that supplementary funding should be provided.
The lack of data on
demand and unmet legal need
In order to ensure that
funding is being distributed in an equitable and efficient manner, there needs
to be an understanding of the demand and unmet need for legal services that
exists across Australia.
One of the key findings of
the Third Report was the need for the
Commonwealth to collect, analyse and publish more meaningful data on the impact
of recent changes to the legal aid system and on the continuing operation of
the system. The Government undertook a two stage Legal Assistance Needs study
between 1997 and 1999, that study forming the basis of the current Rush/Walker
funding model. In this inquiry the Committee heard criticism that this analysis
had no regard to unmet need.
The Committee is concerned
that in 2004 there is still a serious lack of appropriate data, and recommends
that a national survey of both demand for legal aid services and an assessment
of unmet need should be undertaken as a matter of urgency. Such research should
be undertaken in conjunction with state/territory legal aid commissions and
community legal centres.
Groups with
particular needs
During this inquiry there
was much evidence to suggest that various groups are particularly restricted in
gaining access to justice, due to such factors as socioeconomic disadvantage,
cultural background and remoteness from mainstream legal services. The Committee
examined the needs and concerns of some key groups and has suggested various
strategies to address their needs.
Women and family law
The Committee heard
evidence that current legal aid arrangements do not provide sufficient or
uniform access to justice for women, particularly in relation to family law.
Limited financial resources remain a major concern for many women, particularly
in cases of family breakdown. More restrictive criteria in legal aid for family
law matters, particularly in relation to the "cap" on legal aid
funding, the more extensive merit tests and the need to engage in primary
dispute resolution even in cases where domestic violence may be alleged, have
had a significant impact since the last report.
The Committee considers
that more funding is urgently needed for family law matters. Moreover, there
should be a review of legal aid service provision more generally to ensure that
the particular needs of women are addressed. Cases where domestic violence or
child abuse is alleged need particular attention, and the impact of new Family
Court guidelines on child representatives must also be monitored.
The needs of women in
other areas, including immigration law, civil law and the needs of women in
prison, must also be addressed.
Indigenous Australians
The Committee is
particularly concerned about the state of legal service provision to Aboriginal
and Torres Strait Islander people. The need for specialist culturally
appropriate services, particularly in light of the over-representation of
Indigenous people in the justice system, has been well documented in many other
reports and studies. However, the Committee heard significant concerns about
the current shortfall in funding of Indigenous legal services.
A particular issue which
the Committee considers needs urgent attention is the need for increased
services to Indigenous women. They remain chronically disadvantaged in terms of
advice as to their legal rights, access to legal services and the high levels
of violence which many of them experience within their communities. While eight
Indigenous women's legal services have received funding from the Commonwealth
and a number of Family Violence Prevention Unit programs appear to have been
successfully established, the Committee considers that much more needs to be
done for Indigenous women. Also of concern is the conflict of interest that
arises where a local legal service cannot provide advice to both parties to a
matter: evidence suggests that it is often the female victims of violence who miss
out on assistance, and this must be remedied.
Another issue on which the
Committee heard strong concern is the Government's recent decision to put
Indigenous legal services out to tender. The Committee is strongly opposed to
this course of action and considers that the exposure draft of the request to
tender that is currently being circulated should be withdrawn and its
underlying policy reconsidered.
Finally, the Committee is
also concerned about the Government's recent decision, in light of the proposed
abolition of the Aboriginal and Torres Strait Islander Commission, to
"mainstream" Indigenous legal services. It must be ensured that the need
for targeted, culturally sensitive and specialised Indigenous legal aid
services is recognised by decision-makers.
People living in regional, rural and remote Australia,
The Third Report identified various difficulties that people living in
rural and remote areas face, including a lack of lawyers with particular
expertise, conflicts of interest, high transport costs and the need to rely on
telephone advice services rather than personal contact.
During this inquiry the
Committee heard that the inadequacies in legal aid provision are greatly
magnified in rural and remote areas. Large areas of Australia
are not covered by legal aid or free legal services. A number of initiatives
are in place, including outreach programs, duty lawyer schemes and the use of
videoconferencing or telephone advice services, such as the Government's
Regional Law Hotline established in 2001. While the Committee supports such
technological initiatives, they cannot take the place of face-to-face contact,
particularly in sensitive or complex matters, and should be seen as an adjunct
to them.
The Committee is also
particularly concerned about the apparent shortage of lawyers in
non-metropolitan areas. Incentives such as subsidies should be investigated by
the Commonwealth, state and territory governments in consultation with the law
societies.
As with other issues
addressed during this inquiry, the Committee also recommends that research be
conducted on the needs of people living in rural, regional and remote areas,
and that consultation with local communities take place prior to the
introduction of new or expanded services.
Migrants and refugees
The Committee is concerned
that the Commonwealth Priorities and Guidelines introduced in 1997 have
resulted in reduced legal assistance to migrants and refugees. While there is
specialist funding under the Immigration Advice and Application Assistance Scheme
(IAAAS) administered by the Department of Immigration and Multicultural and
Indigenous Affairs, legal aid commissions should be able to provide more
assistance, particularly in the preliminary stages of matters. The Committee is
also concerned that the increased demand caused by the introduction of
temporary protection visas is not currently being met. The necessary funding
should be provided to assist legal aid commissions in this task.
In addition, the Committee
agrees with concerns that the administration of the IAAAS by the Department may
cause a conflict of interest and for that reason recommends that the
Attorney-Generals' Department assume that responsibility.
The Committee also
recommends increased funding for interpreter services and that barriers to
practice as non-feeing charging migration agents should be minimised, through
such measures as reducing the costs of continuing professional development.
Other groups
The Committee also heard
evidence of the particular barriers to access to justice faced by homeless
people, the mentally ill and young people.
Specialist programs for
homeless people such as those run by the Public Interest Law Clearing House
appear to be very valuable, but the Committee considers that the existing
services provided by community legal centres and legal aid commissions should
be supported in terms of ensuring they have adequate funding to address the
demands of their clients.
There is often a link
between mental illness and homelessness. The Committee did not receive sufficient
evidence during this inquiry to enable it to assess the extent to which
mentally ill people are deprived of legal representation throughout Australia,
but views with great concern evidence from Advocacy Tasmania about the lack of
representation for people who may be deprived of their liberty for extended
periods. Vulnerable citizens need access to proper legal representation to
protect and enforce their rights, whether that be in courts or other tribunals
that can have a significant impact on their lives.
The Committee also heard
of the barriers young people face in getting legal assistance, particularly the
prohibitive costs, but also their lack of legal knowledge, the alien nature of
the court system and the lack of knowledge of youth workers about legal
issues. Preventing young people from
becoming caught up in the criminal justice system is particularly important,
and the Committee heard evidence of the valuable role that outreach services
can play. This is another area where the Committee has recommended the
Government consult with state and territory legal aid commissions about the
need for increased funding to youth legal services.
Changing aspects of
the system
The Committee found that
changes to legal aid funding and the unmet demand for legal assistance appear
to have had a significant impact on particular components of the legal system
since its last report. This report considers in some detail the provision of
pro bono legal services, the increasing number of self-represented litigants and
the increased demand on community legal centres.
Pro bono services
In the Third Report
the Committee noted that the Government appeared to believe that more of the
legal aid workload could be shifted to the private legal profession, and warned
of the limited capacity of the private profession to take more responsibility.
Since 1998, there have been significant developments in pro
bono service provision, particularly in terms of increased coordination of
those services. Major initiatives include two national conferences on pro bono
legal services and the establishment in 2002 of the National Pro Bono Resource
Centre, partly funded by the Commonwealth over four years. However, data on the
nature and extent of pro bono services nationally is still sparse. The
Committee considers that the Government should commit itself to ongoing funding
of the National Pro Bono Resource Centre past 2006 and should provide
additional funding to allow it to develop better data.
Evidence to this inquiry also repeatedly warned that pro
bono legal services should not be seen as a substitute for adequate legal aid
funding. There are still areas where private law firms provide very limited
assistance, particularly in some of the lower profile areas of law such as
community law.
The Committee also considers that lawyers who provide pro
bono services should be entitled to recover their costs in appropriate cases.
Self-represented
litigants
The Committee in the Third
Report concluded that an indicator of how well the legal aid system was
working was the number of litigants who appear before the courts without legal
advice or representation. Evidence at that time suggested that this was
occurring increasingly, although comprehensive data was not available. The
Committee made various recommendations, including that the Government should
analyse and publish annual data on unrepresented litigants in the various
courts, and report on whether the savings made by denying legal aid were
outweighed by the impact of unrepresented litigants on court time and
resources.
Various reports and research projects, including those by
the Australian Law Reform Commission and the Family Law Council,
have established a strong link between cuts to legal aid funding and the rising
incidence of self-representation, particularly in the Family Court. While some
individuals may choose not to have a lawyer because, for example, they perceive
they will have a tactical advantage, evidence to this inquiry suggests that
reduced legal aid funding is directly responsible for the lack of legal
representation for many others. This has potentially serious consequences for
the enforcement of individual rights. The Committee also heard evidence of the
adverse impact of self-represented litigants on other parties, court registries,
judicial officers and the administration of justice generally.
While the legal community, including the courts and legal
aid commissions, have introduced various initiatives to remedy those
disadvantages, including the establishment of duty solicitor schemes at some
courts and improving information services to the public, the Committee believes
that more government support is needed. In particular, the effectiveness of
legal information services should be evaluated, and duty solicitor schemes should
be expanded for criminal, civil and family law matters.
Community legal
centres
The Committee heard significant evidence of concerns amongst
community legal centres of the increased demand for their services. Throughout Australia
there are over 200 centres that assist many disadvantaged clients who cannot
afford legal representation but who are not eligible for legal aid. The
Government provides approximately $20 million in funding to over a hundred of
these centres; however, there was compelling evidence that many centres are
facing a funding crisis. It is difficult for them to attract and retain skilled
staff, particularly legal staff. Moreover, the Committee heard that the
condition of premises was so inadequate that competitions have been held for the
worst office and some lawyers routinely interview clients in their cars. This
cannot be allowed to continue.
The Committee considers that the community legal centre
sector is a crucial part of providing access to justice for all Australians and
is concerned that centres appear to be under extreme pressure. Consequently, an
analysis of the impact of reduced legal aid funding on demand for their
services, coupled with increased funding to this sector, is urgently required.
Conclusion
The Committee believes that
the recommendations contained in this report if implemented will play an
important part in improving access to justice for all Australians and assist in
the administration of legal aid.